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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

C,  Wellborn 


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jT^  7f^Q<:^ 


ILLUSTRATIVE   CASES 


IN 


PERSONALTY. 


BY 

W.   S.   PATTEE,   LL.D., 

DEAX   OF   COLLEGE   OF   LAAV,   UXIVEKSITY   OF   MINNESOTA. 


Part  II.-SALES. 


PHILADELPHIA: 

T.  &  J.   W.  JOHNSON    &    CO., 
1894. 


Entered  according  to  Act  of  Congress,  in  the  year  1894,  by 

WILLIAM  S.  PATTEE,  LL.D., 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Is 


TABLE  OF  CASES. 


Andrews  ?'.  Duraxt, 
Arques  v.  Wasson, 
Uabcock  v.  Trice, 
^^t^  Bradshaw  t.  Warxer, 

BUCIIM ASTER  V.  SmITII, 

Chapman  v.  Shepard, 
CoGGiLL  V.  Hartford, 
Cole  v.  Berry, 
Day  v.  Bassett, 
Dearrorn  v.  Turner, 
DusTAN  V.  Mc Andrew, 
IH'''  Elliott  v.  Stoddard, 
Fletcher  v.  Livingston, 
Foot  v.  Marsh, 
Foster  v.  Ropes, 
Frazier  v.  Harvey, 
Gartner  v.  Hand, 
GiROUx  V.  Stedman, 
Gross  v.  Kierski, 
Hahn  v.  Fredericks, 
t  v  -Hale  v.  Hays, 
Hanson  v.  Busse, 
Hatch  v.  Oil  Co., 
^ix^Hayden  v.  Davyer, 
/-i^HuLL  V.  Hull, 

Hum  ASTON  v.  Tel.  Co., 
Hunt  ?'.  Wyman, 

LiNGHAM  V.  EgGLESTON, 

LoEB  V.  Peters, 
Low  V.  Pew, 


J« 


11  X.  Y.  35 

283 

61  Cal.  020 

202  ' 

18  111.  420 

379 

54  Iiul.  58 

242 

22  Vt.  203 

212 

39  Conn.  413 

264 

3  Gray,  545 

344 

42  X.  J.  Law,  308 

337 

102  Mass.  445 

336 

16  Maine,  17 

276 

44  X.  Y.  72 

391 

98  Mass.  145 

241 

7,            153  Mass.  388 

308 

51  N.  Y.  288 

299 

111  Mass.  10 

305 

34  Conn.  469 

365 

12  S.  E.  Rep.  878 

208 

145  Mass.  439 

367 

41  Cal.  Ill 

359 

30  Mich.  223 

301 

54  X.  Y.  389 

211 

45  111.  496 

381 

100  U.  S.  124 

249 

47  Minn.  246 

218 

48  Conn.  250 

199 

20  Wall.  20 

230 

100  Mass.  198 

323 

,                 27  Mich.  324 

292 

63  Ala.  243 

394 

108  Mass.  347 

205 

(iii) 

848424 

iv  TABLE    OF    CASES. 


McCoNNELL  V.  Hughes, 
IMcCoRMicK  V.  Kelly, 
(\U;-  Marriman  v.  Chapman, 

Minn.  Harvester  v.  Hally, 

•  ^-Xewlan  t;.  DunhajVI, 
XoFSiNGER  V.  Ring, 
Paddock  v.  Davenport, 
Paul  v.  Peed, 
Pease  v.  Sabine, 
Phillips  v.  Moor, 
Prescott  v.  Locke, 
EoBsoN  V.  Bohn, 
PoGERs  V.  Woodruff, 

(^Rollins  v.  Wibye, 

Ruthrauff  v.  Hagenbacu, 
Scudder  v.  Worster, 
Sedgwick  v.  Cottingham, 
Shattuck  v.  Green, 
Shaav  v.  Smith, 

J?j   Sinclair  v.  Hathaway, 

hJ:  Smith  v.  Dallas, 

0  ■■  SxMYTH  V.  Craig, 
State  v.  O'Xeil, 
Taft  v.  Travis, 
Terry  v.  Wheeler, 
Thompson  v.  Wedge, 

'•   '  Warder  v.  Bowen, 
Whitmarsh  v.  Walker, 
Whitney  v.  Boardman, 
Wittkowsky  v.  Wasson, 

iryd^  WoLcoTT  Johnson  ?;.  Mount, 

/-/^/(.Woodruff  v.  Graddy, 


29  Wis.  537 

221 

28  Minn.  135 

354 

32  Conn.  146 

334 

27  Minn.  495 

247 

60  111.  233 

223 

71  Mu.  149 

321 

12  S.  E.  Rep.  464 

219 

52  X.  II.  136 

289 

38  Vt.  432 

373 

71  Maine,  78 

260 

51  K  II.  94 

309 

22  Minn.  410 

399 

23  Ohio  St.  632 

324 

40  Minn.  149 

409 

58  Pa.  St.  103 

197 

11  Cush.  573 

401 

54  Iowa,  512 

272 

104  Mass.  42 

362 

25  Pac.  Rep.  886 

375 

57  Mich.  60 

370 

35  Ind.  255 

277 

3  W.  k  S.  14 

226 

58  Vt.  140 

326 

136  Mass.  95 

235 

25  K  Y.  520 

349 

50  Wis.  642 

275 

31  Minn.  335 

352 

1  Met.  313 

397 

11^  Mass.  242 

389 

71  K  C.451 

236 

38  K  J.  Law,  496 

383 

17  S.  E.  Rep.  264 

214 

CASES  ON  SALES 


OF 


PERSONAL  PROPERTY. 


A  sale  is  a  contract  for  "  The  transfer  of  the  abso- 
lute or  general  property  in  a  thing  for  a  price  in 
money."  Darlington  on  Per.  Property,  78;  Benjamin 
on   Sales  (Ed.  1884),  1. 

I. 

THING   TO   BE   SOLD. 

A. 

Actual  Existence. 

RUTHRAUFF   V.  IIaGENBUCH. 

Supreme  Court  of  Pennsylvania,  1868. 
58  Pa.  St.  103. 

Read,  J.  The  plaintiff  raised  a  crop  of  tobacco  on  the  land 
of  the  defendant  in  18G3,  on  the  shares.  It  was  gathered,  stripped, 
and  stored  in  sheds  on  the  farm  of  tlic  defendant,  and  remained 
in  the  joint  ownership  of  the  plaintiff  and  defendant  until  the 
18th  of  March,  1864,  when  they  entered  into  the  following 
agreement  under  seal : — 

"  Agreement  entered  iiito  March  18,  1864,  between  Daniel 
S.  Ruthrauff  and  Peter  Ilagenbuch,  both  of  Union  County, 
Pennsylvania,  as  follows,  to  wit:  The  said  Ruthrauff  hereby 
agrees  to  sell,  and  doth  sell,  unto  the  said  ITtigenbuch,  in  Turbut 
Township,  being  the  undivided  half  of  all  the  tobacco  said 
14  (197) 


198  ILLUSTRATIVE    CASES 

Ruthrauff  raised  on  the  said  farm,  at  fourteen  cents  per  pound. 
The  said  tobacco  being  herein  and  hereby  now  delivered  by 
said  Ruthrauff  to  said  Hagenbuch — and  the  said  Ilagenbuch 
hereby  agrees  to  sell  the  said  tobacco  for  the  best  price  that  he 
can  obtain  for  it — and  whatever  said  Ilagenbuch  may  obtain 
for  said  tobacco  after  paying  all  expenses  for  preparing  the 
same  for  market,  and  selling  over  and  above  the  said  sum  of 
fourteen  cents  per  pound,  he  shall  account  for  and  pay  to  said 
Ruthrauff." 

Upon  this  agreement  are  endorsed  receipts  for  payments  on 
the  4th  Deceinber,  1863,  January,  1864,  and  March  18,  1864, 
amounting  to  $110.08. 

The  tobacco  remained  on  the  land  and  in  the  possession  of 
the  defendant  until  the  17th  March,  1865,  when  it  was  swept 
away  by  a  flood,  and  the  real  question  in  this  cause  was  what 
is  the  true  construction  of  this  agreement,  which,  of  course,  was 
for  the  decision  of  the  Court. 

The  natural  reading  of  this  instrument  would  make  the 
transaction  a  sale  and  delivery  of  the  plaintiff's  share  of  the 
tobacco  to  the  defendant  for  a  fixed  price,  to  be  increased,  but 
not  to  be  diminished,  by  the  net  proceeds  of  sale  above  that 
price,  which  could  be  fixed  or  made  certain  without  difiiculty. 
If  this  were  a  sale,  then  the  defendant  is  liable  to  the  plain tifi" 
for  the  lost  tobacco,  and  at  the  price  of  14  cents  per  pound, 
the  flood  having  rendered  impossible  the  performance  of  the 
latter  part  of  the  agreement,  which,  therefore,  becomes  simply 
a  sale  for  a  fixed  price. 

This  is  strongly  corroborated  by  the  receipts  for  money  en- 
dorsed on  the  agreement,  the  last  on  the  very  day  of  its  execu- 
tion. The  counsel  for  the  defendant,  it  is  true,  states  that  the 
defendant  was  the  creditor  of  the  plaintift";  if  so,  it  makes  the 
sale  more  evident,  because,  if  it  were  not  so,  the  plaintiff"  would 
lose  the  tobacco  and  still  remain  liable  to  the  defendant,  sup- 
posing the  defcndiint  to  have  been  his  creditor  to  the  full  value 
of  the  tobacco  ;  and  if  it  is  a  bailment  or  trust,  then  the  plain- 
tiff' is  still  liable  for  that  amount,  having  lost  the  very  tobacco 
which  would  be  said,  according  to  the  defendant's  theory,  to 
be  simjily  a  trust  or  agencj'  on  the  part  of  the  defendant. 

The  Court,  therefore,  erred  in  holding  it  not  to  be  a  sale, 


IN    PERSONALTY — SALES.  199 

but  a  transfer  in  the  nature  of  a  trust,  and  that  the  defendant 
was  a  mere  trustee,  holding  the  tobaceo  for  the  benelit  of  the 
plaintiff. 

We  think  it  was  a  sale,  and  the  Court  should  have  so  in- 
structed the  jury. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


Potential    Existence. 

Hull  v,  Hull. 

Supreme  Court  of  Errors,  Connecticut,  1880. 

48  Conn.  250. 

LooMis,  J.  The  controversy  in  this  case  has  reference  to 
the  ownership  of  six  colts,  the  progeny  of  two  brood  mares, 
which  the  plaintiff,  some  ten  years  prior  to  this  suit,  pur- 
eiiased  in  Boston  of  the  Kev.  William  II.  II.  Murray.  The 
contract  of  sale  provided  that  the  plaintifl'  might  take  the 
mares  to  Murray's  farm  in  this  fetate,  of  which  she  was  and 
had  been  for  several  years  the  superintendent,  and  there  keep 
them  as  breeding  mares ;  and  all  the  colts  thereafter  foaled 
from  them,  though  sired  by  Murray's  stallions,  were  to  be  the 
exclusive  property  of  the  plaintifi*. 

No  attempt  has  been  made  by  Murray's  creditors  or  his 
trustee  to  deprive  the  plaintiff  of  the  mares  so  purchased, 
and  they  are  now  in  her  undisturbed  possession ;  but  the 
colts,  while  on  Aluri-ay's  farm  on  the  1st  of  August,  1879, 
were  attached  by  one  of  his  creditors,  who  subsequently 
released  the  property  to  the  defendant  as  trustee  in  insol- 
vency, who  had  the  proj)erty  in  his  possession  at  the  time  the 
plaintift"  brought  her  writ  of  rei)levin. 

The  sole  ground  u})on  which  the  defendant  claims  to  hold 
these  colts  is,  that  there  was  such  a  retention  of  possession 
by  Murray  after  the  sale  as  to  render  the  transaction  con- 
structively' fraudulent  as  against  creditors. 

The  Court  below  overruled  this  claim,  and  in  so  doing  we 
think  committed  no  error. 


200  ILLUSTRATIVE    CASES 

The  doctrine  as  to  retention  of  possession  after  a  sale  has 
no  application  to  the  facts  of  this  case.  A  vendor  cannot 
retain  after  a  sale  what  does  not  then  exist  nor  that  which  is 
already  in  the  possession  of  the  vendee.  This  proposition 
would  seem  to  he  self-sustaining.  If,  however,  it  needs 
confirmation,  the  authorities  in  this  State  and  elsewhere 
abundantly  supply  it:  Lucas  v.  Birdsey,  41  Conn.  357; 
Capron  v.  Porter,  43  Id.  389 ;  Spring  v.  Chipman,  6  Verm. 
662.  In  Bellows  v.  Wells,  36  Verm.  599,  it  was  held  that  a 
lessee  might  convey  to  his  lessor  all  the  crops  which  niight 
be  grown  on  the  leased  land  during  the  term,  and  no  delivery 
of  the  crops  after  they  were  harvested  was  necessary  even  as 
against  attaching  creditors,  and  that  the  doctrine  as  to  reten- 
tion of  possession  after  the  sale  did  not  apply  to  property  which 
at  the  time  of  the  sale  was  not  subject  to  attachment  and  had 
no  real  existence  as  property  at  all. 

The  case  at  bar  is  within  the  principle  of  the  above  authori- 
ties, for  it  is  very  clear  that  the  title  to  the  property  in  question 
when  it  first  came  into  existence  was  in  the  i^laintiif. 

In  reaching  this  conclusion  it  is  not  necessary  to  hold  that 
the  mares  became  the  absolute  property  of  the  plaintifi*  under 
Massachusetts  law  without  a  more  substantial  and  visible 
change  of  possession,  or  that  under  our  law,  the  title  to  the 
mares  being  in  the  plaintiff  clearly  as  between  the  parties,  the 
rule  imported  from  the  civil  ]3iW' ,  j^^'^'if^s  scquitur  ventrem,  applies. 

We  waive  the  consideration  of  these  questions.  It  will 
suffice  that,  by  the  express  terms  of  the  contract,  the  plaintiff 
was  to  have  as  her  own  all  the  colts  that  might  be  born  from 
these  mares.  That  the  law  will  sanction  such  a  contract  is 
very  clear. 

It  is  true,  as  remarked  in  Perkins  on  Conveyances  (tit. 
Grant,  §  65),  that  "  it  is  a  common  learning  in  the  law  that 
a  man  cannot  grant  or  charge  that  which  he  has  not ;"  yet 
it  is  equally  well  settled  that  a  future  possibility  arising  out 
of,  or  dependent  upon,  some  present  right,  property,  or  interest, 
may  be  the  subject  of  a  valid  present  sale. 

The  distinction  is  illustrated  in  ITobart,  132,  as  follows: 
"The  grant  of  all  the  tithe  wool  of  a  certain  year  is  good  in 
its  creation,  though  it  may  ha]ipcn  that  there  be  no  tithe  wool 


IN    PERSONALTY  —  SALES.  201 

in  that  year;  but  the  grant  of  the  wool  whicli  shall  grow  upon 
such  sheep  as  the  grantor  may  afterwards  purchase,  is  void." 

It  is  well  settled  that  a  valid  sale  may  be  made  of  the 
wine  a  vineyard  is  expected  to  jtroduce,  the  grain  that  a  tii-ld 
is  expected  to  grow,  the  milk  that  a  cow  may  yield,  or  the 
future  young  born  of  an  animal :  1  Parsons  on  Contracts 
(5th  ed.),  page  523,  note  /•,  and  cases  there  cited;  Ililliard 
on  Sales,  §  18  ;  Story  on  Sales,  §  18G.  In  Fonville  v.  Casey, 
1  Mur[)hy  (X.  C),  389,  it  was  held  that  an  agreement  for  a 
valuable  consideration  to  deliver  to  the  jilaintilf  the  first 
female  colt  wdiich  a  certain  mare  owned  by  the  defendant 
might  produce,  vests  a  jiroperty  in  the  colt  in  the  plaintiff, 
upon  the  principle  that  there  may  be  a  valid  sale  where  the 
title  is  not  actually  in  the  grantor,  if  it  is  in  him  potentially, 
as  being  a  thing  accessory  to  something  which  he  actually  has. 
And  in  McCarty  v.  Blevins,  5  Yerg.  195,  it  was  held  that  where 
A.  agrees  with  B.  that  the  foal  of  A.'s  mare  shall  belong  to  C, 
a  good  title  vests  in  the  latter  when  parturition  from  the  mother 
takes  place,  though  A.  immediately  after  the  colt  was  born  sold 
and  delivered  it  to  D. 

Before  resting  the  discussion  as  to  the  plaintiff's  title  we 
ought  perhaps  briefly  to  allude  to  a  claim  made  by  the  defen- 
dant, both  in  the  Court  below  and  in  this  Court,  to  the  effect  that 
if  the  plaintift''s  title  be  conceded  she  is  estopped  from  asserting 
her  claim.  This  doctrine  of  estoppel,  as  all  triers  must  have 
observed,  is  often  strangely  misapplied.  And  it  is  surely  so  in 
this  instance.  The  case  fails  to  show  any  act  or  omission  on 
the  part  of  the  plaintiff'  inconsistent  with  the  claims  she  now 
makes,  or  that  the  creditors  of  Murray  or  the  defendant  as 
representing  them  were  ever  misled  to  their  itijury  by  any  act 
or  negligence  on  lier  part.  On  the  contrary,  the  estoppel  is 
asserted  in  the  face  of  the  explicit  finding  that  "as  soon  as 
the  plaintiff  became  aware  of  the  attachment  of  her  horses  she 
forbade  the  officer  taking  the  same,  and  demanded  their  imme- 
diate return  to  her." 

The  only  fact  which  is  suggested  as  furnishing  the  basis  for 
the  alleged  estoppel  is  that  from  the  1st  of  August,  1879,  to 
the  12th  of  January  next  following,  "  no  attempt  was  made 
by  the  plaintiff  to  maintain  her  title  by  suit,  although  she  was 


202  ILLUSTRATIVE    CASES 

living  during  the  time  at  Guilford,  where  said  colts  were." 
But  who  ever  heard  of  an  estoppel  in  an  action  at  law  predi- 
cated solely  on  neglect  to  bring  a  suit  for  the  period  of  five 
months?  To  recognize  such  a  thing  for  any  period  short  of 
the  Statute  of  Limitations  would  practically  modify  the  statute 
and  create  a  new  limitation.  Furthermore,  in  what  respect 
have  the  defendant  and  those  he  represents  been  misled  to 
their  injury  by  this  fact?  The  plaintiff  never  induced  the 
taking  of  or  withholding  of  her  property.  And  can  a  tort- 
feasor or  the  wrongful  possessor  of  another's  property  object 
to  the  delay  in  suing  him  for  his  wrong,  and  claim,  as  in  this 
case,  an  estoppel  on  the  ground  that  his  own  wrongful  posses- 
sion proved  a  very  expensive  one  to  hira,  amounting  even  to 
more  than  the  value  of  the  property.  He  might  have  stopped 
the  expense  at  any  time  by  simply  giving  to  the  plaintiff  what 
belonged  to  her. 

The  single  question  of  evidence  which  the  record  presents 
we  do  not  deem  it  necessary  particularly  to  discuss.  It  will 
suffice  to  remark  that  if  the  defendant's  testimony  was  admis- 
sible to  show  that  Murray,  after  the  sale  to  the  plaintiff  (and 
so  far  as  appears  in  her  absence),  claimed  to  own  the  mares  and 
colts,  it  was  a  complete  and  satisfactory  reply  for  the  plaintiff 
in  rebuttal  to  show  that  Murray's  own  entries  (presumably  a 
part  of  the  res  gestae),  in  the  appropriate  books  kept  by  hira, 
showed  the  fact  to  be  otherwise,  and  in  accordance  with  the 
plaintiff's  claims. 

At  any  rate  it  is  very  clear  that  no  injustice  was  done  by 
this  ruling  to  furnish  any  ground  for  a  new  trial. 

There  was  no  error  in  the  judgment  complained  of  and  a 
new  trial  is  not  advised. 


Arques  v.  Wasson. 

Supreme  Court  of  California,  1877. 

51  Cal.  G20. 

Crockett,  J.  The  action  is  replevin  to  recover  from  the 
sheriff  certain  grain  and  flaxseed  seized  and  sold  by  him  under 
an  attachment  and  execution  against  one  Hansen.     The  find- 


IN    PERSONALTY — SALES.  203 

inga  show  that  Iliinscu  leased  from  tlie  jilaintiffs  a  parcel  of 
land,  and  from  one  Reed  an  adjoining  jiaroel,  of  hoth  of  which 
he  was  in  possession  under  the  leases;  that  to  secure  the  rent 
to  be  paid  to  the  plain  tills,  and  also  a  store  account  which 
he  owed  them,  he  duly  executed  and  delivered  to  them  a 
mortgage  (wliich  was  duly  recoi'ded)  upon  all  the  crops  of 
every  kind  to  be  produced  on  said  lands  during  the  next  en- 
suing cropping  season  ;  that  at  the  date  of  tlie  mortgage  Han- 
sen was  in  possession  of  the  land,  but  had  not  then  plowed  it 
or  sowed  the  seed,  but  proceeded  to  do  so  very  soon  thereafter, 
and  produced  the  crop  which  is  in  controversy  ;  that  when  the 
crop  had  matured  and  had  been  partially  harvested,  it  was 
seized  by  the  defendant  as  sheriff,  under  an  attachment  at  the 
suit  of  another  creditor  of  Hansen,  and  wag  subsequentl}-  sold 
by  the  defendant  under  an  execution  issued  upon  the  judgment  in 
said  action.  The  plaintitf  recovered,  and  the  defendant  appeals. 
The  point  chielly  relied  upon  for  a  reversal  is,  that  at  the 
date  of  the  mortgage  the  crop  had  not  even  a  potential  exist- 
ence, the  ground  not  having  been  plowed  or  the  seed  sown  ; 
and  it  is  claimed  that  there  can  be  no  valid  mortgage  of  a 
thing  not  in  esse.  It  is  conceded  by  counsel  that  if  the  thing 
lias  a  potential  existence,  as,  for  example,  wool  to  be  grown 
from  sheep  then  belonging  to  the  mortgagor,  or  butter  to  be 
thereafter  produced  fiotn  his  cows,  or  a  crop  arising  from  seed 
already  sown,  the  mortgage  would  be  valid.  The  general  rule 
undoubtedly  is  that  a  person  cannot  convey  a  thing  not  hi  csse^ 
or  in  which  he  has  no  present  interest.  But  it  is  quite  as  well 
settled,  that  if  the  thing  has  a  potential  existence  it  may  be 
mortgaged  or  hypothecated.  "  If  one,  being  a  person,  give  to 
another  all  the  wool  he  shall  have  for  tithes  the  next  year, 
this  is  a  good  grant,  although  none  may  arise,  for  tbc  tithes 

are  potentially  in  the  person So  one  may  grant  all  the 

wool  of  his  sheep  for  seven  years  ;  but  not  of  the  sheep  which  he 
shall  thereafter  purchase:"  Van  Iloozer  r.  Corey,  34  IJarb.  12, 
and  authorities  there  cited.  "  Land  is  the  mother  and  root  of  all 
fruits.  Wherefore  he  that  hath  it  may  grant  all  fruits  that  may 
arise  upon  it  after,  and  the  property  shall  pass  as  soon  as  the 
fruits  are  extant:"  Grantham  r.  Ilawle}',  Hob.  R.  132.  In  Van 
Iloozer  V.  Corey,  supi-a,  the  Court  holds  that  "  the  same  prin- 


204  ILLUSTRATIVE    CASES 

ciple  is  adjudged  applicable  to  the  annual  crops,  the  fruit  of 
the  annual  labor  of  the  lessee,  as  if  a  lessor  covenants  that  it 
shall  be  lawful  for  the  lessee,  at  the  expiration  of  the  lease,  to 
carry  away  the  corn  growing  on  the  premises,  although  by 
possibility  there  may  be  no  corn  growing  at  the  expiration  of 
the  lease,  yet  the  grant  is  good,  for  the  grantor  had  such  a 
power  in  him,  and  the  property  shall  pass  as  soon  as  the  corn 
is  extant."  So  there  may  be  a  valid  grant  of  the  grain  that  a 
field  is  expected  to  grow :  1  Parsons  on  Cont.  523  ;  McCarthy 
V.  Blevins,  5  Yerg.  195.  In  Van  Hoozer  v.  Corey,  svpra,  the 
grant  was  of  the  cheese  expected  to  be  made  from  the  cows  of 
the  grantor,  and  "the  products  expected  to  be  raised  upon  the 
premises  then  demised  to  the  grantor;"  and  this  was  held  to 
be  a  valid  grant.  In  that  case  the  question  involved  here  was 
carefully  considered  by  the  Court  upon  a  full  examination  of 
the  authorities,  and  we  are  satisfied  with  the  conclusion  to 
which  it  arrived.  But  the  same  question  arose  in  the  later 
case  of  Conderman  v.  Smith,  41  Barb.  404,  in  which  the  ruling 
in  Van  Hoozer  v.  Corey  was  approved  ;  and  Johnson,  J.,  in  de- 
livering the  opinion  of  the  Court,  said:  "That  case,  Van 
Hoozer  v.  Corey,  like  this,  was  an  action  by  the  lessor  and  pur- 
chaser, against  a  creditor  of  the  lessee,  who  had  taken  and  sold 
the  products  of  the  farm  and  dairy  upon  execution  ;  and  the 
Court  held  that  it  did  not  fall  Avithin  the  rule  which  prohibits 
the  selling  or  mortgaging  of  property  not  in  existence,  or  not 
owned  by  the  vendor  or  mortgagor.  It  was  the  product  of 
property  which  the  vendor  owned  at  the  time,  and  was,  as  it 
is  expressed  in  the  books,  potentially  his,  and,  therefore,  the 
subject  of  sale."  On  the  rule  establisbed  in  these  cases,  the 
crop  mortgaged  to  the  plaintiffs  had  a  potential  existence,  and 
the  mortgage  was  valid. 

Judgment  and  order  atlirmed. 

1  Parsons  on  Contracts,  ^  .523  ;  Sanborn  v.  Benedict,  78  111.  309. 

M'Carty    v.    Bievins,    5    Yerg.        Ileald  v.  Builders'  Ins.  Co.,  Ill 

(Tenn.)  195  ;  Mass,  38. 

Fonville  v.  Casey,  1  Murpliy  (N.        Such  sales  respecting  subsequent 

C.)3S(i;  purchasers. 

Allen  V.  Delano,  55  Me.  113  ;  Butt  v.  Ellett,  19  Wallace,  544  ; 

Buckmaster  r.  Smith,  22  Vt.  203  ;        Pennington  v.  Jones,  57  Iowa,  37  ; 

Sawyer  v.  Gerrish,  70  Mo.  254  ;  Gittings  v.  Nelson,  8G  111.  591. 

"Wilkinson  v.  Ketlcr,  60  Ala.  435  ; 


IN    PERSONALTY — SALES.  205 

c. 

Mere  Possibility  or  Hope. 

Low  V.  Pew.  — 

Supreme  Judicial  Court  of  Massachusetts,  1871. 
108  Mass.  347. 

Morton,  J.  By  the  decree  adjudging  John  Low  &  Son  bank- 
rupts, all  their  property,  except  such  as  is  exempted  by  the  bank- 
rupt law,  was  brought  within  the  custody  of  the  law,  and  by  the 
subsequent  assignment  passed  to  their  assignees :  Williams  v. 
Merritt,  103  Mass.  18-4.  The  firm  could  not  by  a  subsequent 
sale  and  delivery  transfer  any  of  such  property  to  the  })laintiffs. 
The  schooner  which  contained  the  halibut  in  suit  arrived  in 
Gloucester  August  14, 1869,  which  was  after  the  decree  of  bank- 
ruptcy. If  there  had  been  then  a  sale  and  delivery  to  the  plain- 
tiffs of  the  property  replevied,  it  would  have  been  invalid. 
The  plaintiffs  therefore  show  no  title  to  the  halibut  replevied, 
unless  the  eflect  of  the  contract  of  April  17,  1809,  was  to  vest 
in  them  the  property  in  the  halibut  before  the  bankruptcy. 
It  seems  to  us  clear,  as  claimed  by  both  parties,  that  this  was 
a  contract  of  sale,  and  not  a  mere  executory  agreement  to  sell 
at  some  future  day.  The  plaintifls  cannot  maintain  their  suit 
upon  any  other  construction,  because,  if  it  is  an  executory 
agreement  to  sell,  the  pro[)erty  in  the  halibut  remained  in  the 
bankrupts,  and,  there  being  no  delivery  before  the  bankruptcy, 
passed  to  the  assignees.  The  question  in  the  case  therefore  is, 
whether  a  sale  of  halibut  afterwards  to  be  caught  is  valid,  so 
as  to  pass  to  the  purchaser  the  property  in  them  when  caught. 

It  is  an  elementary  principle  of  the  law  of  sales,  that  a  man 
cannot  grant  personal  property  in  which  he  has  no  interest  or 
title.  To  be  able  to  sell  property,  he  must  have  a  vested  right 
in  it  at  the  time  of  the  sale.  Thus  it  has  been  held  that  a 
mortgage  of  goods  which  the  mortgagor  does  not  own  at  the 
time  the  mortgage  is  made,  though  he  afterwards  acquires 
them,  is  void:  Jones  v.  Kichardson,  10  Met.  48L  The  same 
principle  is  applicable  to  all  sales  of  personal  property :    Rice 


206  ILLUSTRATIVE    CASES 

V.  Stone,  1  Allen,  566,  and  cases  cited;  Head  v.  Goodwin,  37 
Maine,  181. 

It  is  equally  "well  settled  that  it  is  sufficient  if  the  seller  has 
a  potential  interest  in  the  thing  sold.  But  a  mere  possibility 
or  expectancy  of  acquiring  property,  not  coupled  with  any  in- 
terest, does  not  constitute  a  potential  interest  in  it,  within  the 
meaning  of  this  rule.  The  seller  must  have  a  present  interest 
in  the  property,  of  which  the  thing  sold  is  the  product,  growth, 
or  increase.  Having  such  interest,  the  right  to  the  thing  sold, 
when  it  shall  come  into  existence,  is  a  present  vested  right,  and 
the  sale  of  it  is  valid.  Thus  a  man  may  sell  the  wool  to  grow 
upon  his  own  sheep,  but  not  upon  the  sheep  of  another ;  or  the 
crops  to  grow  upon  his  land,  but  not  upon  land  in  which  he 
has  no  interest :  2  Kent  Com.  (10th  ed.)  468,  (641)  note  a ; 
Jones  V.  Richardson,  10  Met.  481 ;  Bellows  v.  Wells,  36  Yerm. 
599  ;  Van  Hoozer  v.  Corey,  34  Barb.  9  ;  Grantham  v.  Hawley, 
Hob.  132. 

The  same  principles  have  been  applied  by  this  Court  to  the 
assignment  of  future  wages  or  earnings.  In  Mulhall  v.  Quinn, 
1  Gray,  105,  an  assignment  of  future  wages,  there  being  no 
contract  of  service,  was  held  invalid.  In  Hartley  v.  Tapley,  2 
Gray,  565,  it  was  held  that,  if  a  person  is  under  a  contract  of 
service,  he  may  assign  his  future  earnings  growing  out  of  such 
contract.  The  distinction  between  the  cases  is,  that  in  the 
former  the  future  earnings  are  a  mere  possibility,  coupled  with 
no  interest,  while  in  the  latter  the  possibility  of  future  earn- 
ings is  coupled  with  an  interest,  and  the  right  to  them,  though 
contingent  and  liable  to  be  defeated,  is  a  vested  right. 

In  the  case  at  bar,  the  sellers,  at  the  time  of  the  sale,  had  no 
interest  in  the  thing  sold.  There  was  a  possibility  that  they 
might  catch  halibut ;  but  it  was  a  mere  possibility  and  expect- 
ancy, coupled  with  no  interest.  We  are  of  opinion  that  they 
had  no  actual  or  potential  possession  of,  or  interest  in,  the  fish  ; 
and  that  the  sale  to  the  plaintifts  was  void. 

The  plaintiii's  rely  upon  Gardner  v.  Hoeg,  18  Pick.  168,  and 
Tripp  V.  Brownell,  12  Cush.  376.  In  both  of  these  cases  it  was 
held  that  the  lay  or  share  in  the  profits,  which  a  seaman  in  a 
whaling  voyage  agreed  to  receive  in  lieu  of  wages,  was  assign- 
able.    The  assignment  in  each  case  was,  not  of  any  part  of  the 


IN    PEUSOXALTY — SALES. 


207 


oil  to  be  made,  but  of  tlie  debt  which  under  the  shipping  articles 
would  become  due  to  the  seaman  Ironi  thQ.o\vners  at  the  end  of 
the  voyage.  Tlie  Court  treated  them  as  cases  of  assign nients  of 
choses  in  action.  The  question  upon  vhich  the  case  at  bar 
turns  did  not  arise,  and  was  not  considered. 
Judjrment  for  the  defendants. 


2  Schouler  on  P.  P.  U  208,  209  ; 

Skipper  i".  Stokes,  42  Ala.  255  ; 

Hartley  v.  Tapley,  2  Gray,  505  ; 

Wilson  V.  Wilson,  37  Mtl.  1 ; 

Head  v.  Goodwin,  37  Me.  181 ; 

Brown  v.  Combs,  G3  N.  Y.  598. 

Where  one  attempts  to  sell  prop- 
erty to  be  afterwards  acquired,  and 
authorizes  the  vendee  to  take  pos- 
session of  it  when  so  acquired,  while 
no  title  passes  by  the  sale,  yet  when 


the  property  is  acquired  and  is  taken 
into  possession  of  the  vendee,  the 
title  does  pass  by  the  act  of  such 
authorized  seizure.  McCallVey  v. 
Woodin,  Go  N.  Y.  459 ;  Calkins  v. 
Lockwood,  IG  Conn.  27G. 

For  the  treatment  of  such  sales 
in  Equity,  see — 

Pattee's  Illustrative  Cases  in 
Equity,  pp.  37-41. 


208  ILLUSTRATIVE    CASES 


II. 

PRICE. 

In  a  contiact  of  sale  the  ^j?'ice  must  be  in  money 
or  money's  worth,  either  paid  or  promised,  and  defi- 
nitely fixed  by  the  parties,  or  by  them  made  capable 
of  being   definitely  ascertained. 

A. 

Money. 

Gartner  v.  Hand  et  al. 

Supreme  Court  of  Georgia,  1891. 

12  S.  E.  Rep.  878  ;  86  Ga.  558. 

Simmons,  J.     It  appears  from  the  record  that  Hand  &  Co. 

wrote   the  following  letter  to  Gartner:  "  Rome,  Ga., , 

1886.  Carl  Gartner,  Hamburg,  Germany — Su' :  We  can  fur- 
nish a  considerable  quantity  of  oak,  white  and  red,  of  good 
quality,  2,  3,  4  and  5  inches  thick,  10  to  24  inches  wide,  12, 
14,  and  16  inches  long.  If  you  are  situated  so  that  you  can 
handle  this  lumber,  we  shall  be  glad  to  hear  from  you  as  to 
quantity  you  can  handle,  and  price  you  can  pay  for  the  same." 
Gartner  replied  as  follows:  "Hamburg,  16th  November,  1886. 
Messrs.  F.  C.  Hand  &  Co.,  Rome,  Ga.,  U.  S.  A.— Dear  Sirs:  I 
duly  received  your  favor  without  date,  and  now  beg  to  submit 
you  the  following  trial  order,  viz.:  2  carloads  oak  planks, 
wagon  stuff  [describing]  ;  price  $40  per  thousand  feet,  broad 
measure,  delivered  Rotterdam,  less  my  commission  of  5  per 
cent. ;  terms  cash  on  arrival  of  the  wood  at  Rotterdam  less  2| 
per  cent,  or  three  months'  acceptance,  your  option.  Please 
cable  me  on  receipt  of  this  your  acceptance  of  this  order,  or 
best  possible  couuter-ofler.     Shipment  to  be  effected  promptly. 


IN    PERSONALTY — SALES.  200 

[Further  description  of  tlie  tirnbcr.s.]  Awaiting  your  early 
cable,  I  am,"  etc.  "  P.  S.  Can  you  deliver  oak  floorings  as  per 
specification  inclosed?  Then  please  cable  your  cheapest  price." 
Then  follow  specifications  of  marks  and  quantities  of  oak 
boards.  The  specifications  are  for  six  carloads  of  dooring  and 
two  carloads  of  wagon  stuft'.  To  this  letter  Hand  &  Co.  replied 
by  cable  as  follows:  "Rome,  December  16,  188G.  Gartner, 
Hamburg  :  Wagon  stuff,  forty-two  dollars  ;  flooring,  forty-one." 
Gartner  replied  by  cable  as  follows:  "Hamburg,  December  17, 
1886.'  Hand  &  Co.,  Rome,  Ga. :  Accept  wagon  stutt;  floorings 
your  prices,  my  conditions.  Immediate  shipment,  cable  con- 
firmation." Hand  &  Co.  replied  by  cable  as  follows:  "Rome, 
Ga.,  December  18, 1886.  Gartner,  Hamburg :  Shipment  begins 
next  week." 

It  appears  from  the  record  that,  for  some  reason  not  stated, 
Hand  &  Co.  refused  to  ship  the  timber  to  Gartner ;  whereupon 
Gartner  filed  a  suit  against  them,  alleging  breach  of  contract, 
and  setting  out  in  his  declaration  the  above  correspondence, 
and  in  addition  thereto  a  letter  from  him  to  Hand  &  Co.,  dated 
December  17,  1886,  wherein  he  recites  the  correspondence  by 
cable,  and  states  his  acceptance  of  the  timber,  and  asks  whether 
they  will  undertake  to  deliver  regularly  other  kinds  of  timber, 
etc."^  A  letter  from  Hand  &  Co.  to  Gartner  is  dated  December 
18,  1886,  the  same  day  as  their  telegram  in  which  they  state 
that  the  shipment  begins  next  week.  This  letter  recites  the 
correspondence  by  cablegram,  and  says :  "  You  will  please  under- 
stand that  this  order  refers  to  the  two  carloads  of  wagon  stuff 
witiiout  too  large  knots,  and  to  cars  of  flooring  marked  '  K,' 
'R,'and'S.'  And  the  letter  then  adds:  "We  can  also  fill 
order  for  balance  of  the  cars  of  flooring  in  30  to  40  days,  but 
price  will  be  a  little  higher."  When  the  case  came  on  for  trial 
it  was  dismissed  by  the  Court  on  demurrer,  on  the  ground  that 
the  matters  set  forth  in  the  declaration  are  not  sufficient  to  en- 
able the  plaintiff  to  maintain  his  action  against  the  defendat)t ; 
and  to  this  ruling  the  plaintitt"  excepted. 

We  think  the  Court  erred  in  sustaining  the  demurrer  to  this 
declaration.  It  was  argued  by  counsel  for  the  dcfencUmt  that 
the  correspondence  set  out  in  the  declaration  clearly  shows  that 
there  was  no  contract   made  between   the   parties;  that  their 


210  ILLUSTRATIVE    CASES 

minds  did  not  assent  to  the  same  thing;  and  for  that  reason 
the  judgment  sustaining  the  demurrer  was  not  erroneous.  We 
cannot  take  this  view  of  it.  It  seems  to  us  that  there  was* a 
clear  and  distinct  agreement  between  these  parties,  one  to  sell, 
and  the  other  to  purchase,  a  certain  quantity  of  timber.  Hand 
&  Co.  wrote  to  Gartner  informing  him  that  they  had  certain 
wagon  stuff  for  sale,  and  asking  if  he  could  handle  it.  Gart- 
ner replied  that  he  would  take  two  carloads  of  wagon  stuff, 
and  inquired  if  they  could  furnish  oak  boards  for  flooring  (for 
which  specifications  were  given),  and,  if  so,  to  cable  to  him, 
and  give  prices.  In  reply,  they  cabled  the  prices  for  the  wagon 
stuff  and  the  flooring ;  of  course,  meaning  the  flooring  the 
specifications  of  which  he  had  sent  them.  Gartner  replied, 
accepting  the  price,  and  asking  immediate  shipment ;  and  they 
replied  that  the  shipment  would  begin  next  week.  Here,  then, 
was  an  agreement  between  the  parties  as  to  the  thing  to  be 
sold,  its  quantity  and  quality,  and  the  price;  and,  according  to 
this  correspondence,  the  minds  of  both  parties  must  necessarily 
have  assented  to  the  same  thing  It  seems  to  us  as  clear  and 
clean-cut  a  contract  as  could  possibly  have  been  made.  But  it 
is  argued  that  when  Gartner's  last  letter  arrived  it  contained 
specifications  of  much  more  timber  than  he  had  ordered  in  his 
first  letter,  and  that  this  shows  that  their  minds  did  not  assent 
to  the  same  quantity  and  quality.  We  do  not  think  the  speci- 
fication as  to  additional  timber  makes  any  difierence  as  to 
the  contract  they  had  actually  agreed  upon.  They  had  agreed 
upon  the  shipment  of  six  carloads  of  flooring  and  two  carloads 
of  wagon  stufl",  and  upon  the  price  and  quality  thereof;  and  if 
Gartner  subsequently  ordered  more  at  the  same  price,  and  of  a 
different  quality,  the  defendants  were  not  obliged  to  fill  the 
latter  order.  They  were  only  bound  to  fill  the  order  to  which 
they  had  agreed,  to  ^vit,  the  order  contained  in  the  letter  of 
December  16,  1886. 

It  was  also  contended  by  counsel  for  the  defendant  in  error 
that  the  letter  of  Hand  &  Co.  to  Gartner,  dated  December  18, 
1886,  explanatory  of  their  telegram  of  the  same  day,  shows 
that  the  parties  had  not  agreed  upon  the  same  thing.  That 
letter  states,  in  substance,  that  they  only  meant  to  fill  the  order 
as  to  two  carloads  of  waffon  stuff  and  three  carloads  of  floor- 


IN  PERSONALTY — SALES.  211 

ing.  Wo  do  not  think  this  letter  can  be  taken  into  considera- 
tion in  determining  whether  or  not  the  parties  had  made  a 
cofitract ;  for,  before  this  letter  ^vas  written,  Gartner  had  ac- 
cepted the  offer  of  the  defendants  by  cable,  and  they  had  cabled 
him  in  reply  that  tliey  would  begin  the  shipment  next  week. 
When  the  last  cable  rejily  was  sent,  the  contract  was  complete, 
and  they  could  not  change  it  by  a  letter  written  the  same  day, 
and  forwarded  to  Germany  by  mail.  It  is  quite  likely  that 
before  the  letter  left  the  post-ofhce  at  Rome,  Ga.,  Gartner  had 
received  their  cablegram  in  Hamburg,  and  upon  the  strength 
of  that  cablegram  made  the  contract  with  other  persons  in 
Hamburg  for  the  sale  of  this  timber,  which  he  alleges  in  his 
declaration  he  had  made,  and  for  a  breach  of  which,  caused  by 
the  non-delivery  of  this  timber  by  Hand  &  Co.,  he  had  been 
sued,  and  a  recovery  had  against  him. 
Judgment  reversed. 

DAELIXGTOX,  P.  P.  ?§  77-78 ;        Woodruff  v.  Graddy  et  al,  17  S. 
Benjamin  on  Sales  (1884),  3 ;  E.  204. 

2  Schouler  on  Personal  Property, 
§  211 ; 


B. 

In  Money's  Worth. 

Hale  v.  Hayes. 

Court  of  Appeals,  X.  Y.,  1873. 

54  X.  Y.  389. 

Johnson,  C.  In  my  opinion,  this  is  not  a  case  of  pledge. 
The  clothing  was  never  the  property  of  Mrs.  Earl.  She  owned 
a  house  and  the  defendant  owned  clothing.  He  was  to  have 
the  house  free  of  taxes  for  a  certain  quantity  of  clothing. 
When  the  time  came  for  the  transfer,  she  was  unable  to  pay 
these  taxes,  and  thereupon  the  written  agreement,  proved  in 
the  case,  was  made  between  them.  By  the  terms  of  this 
agreement,  Hayes  was  to  retain  part  of  the  clothing,  but  was 
to  deliver  it  to  her,  if,  within  a  month,  she  paid  the  taxes;  if 


212  ILLUSTRATIVE    CASES 

she  did  not,  he  was  at  liberty  to  pay  them  himself  and  keep 
the  clothing.  Hayes  made  her  no  loan;  she  gave  him  no 
security,  for  she  did  not  own  the  clothing.  It  is  true  he  held 
it  as  security,  as  a  vendor  holds  goods  sold  as  security  for  the 
unpaid  price.  There  was  no  relation  of  borrower  and  lender, 
or  of  pledgor  and  pledgee.  The  real  bargain  was  so  much 
clothing  for  a  house  free  from  taxes,  and  so  much  less  clotliing 
if  the  taxes  remained  unpaid  after  thirty  days.  Just  as  a 
bargain  to  sell  for  so  much,  to  be  paid  in  cash,  or  so  much 
more  in  case  credit  be  given,  does  not  make  usury,  so  this 
bargain  does  not  create  the  relation  of  pledgor  and  pledgee. 
Mrs.  Earl's  interest  in  the  clothing  not  delivered  was  condi- 
tional on  her  fulfilment  of  the  terms  of  the  agreement.  If 
she  failed  to  pay  and  he  jMid  the  taxes,  that  was  the  end  of  it. 

The  Court  at  general  term  was  right,  and  their  order  should 
be  affirmed,  wnth  judgment  absolute  for  the  defendant. 

All  concur;  Lott,  Ch.  C,  not  sitting. 

Order  affirmed,  and  judgment  accordingly. 

BUCKMASTER  V.  SmITH. 

Supreme  Court  of  Vermont,  1850. 
22  Vt.  203. 

Poland,  J.  The  substantial  facts  of  this  case  are  as  follows. 
In  the  spring  of  1846  the  plaintiff,  being  then  the  owner  of  the 
mare  sued  for,  put  her  into  the  possession  of  Amos  Pike,  under 
an  agreement  that  Pike  was  to  pay  the  plaintifi"  four  thousand 
feet  of  boards  for  her,  of  the  value  of  $16,  in  the  course  of  the 
then  ensuing  winter;  and  if  the  boards  were  delivered,  the  mare 
was  to  become  the  property  of  Pike;  but  until  the  delivery  of 
the  boards  she  was  to  remain  the  property  of  the  plaintiff. 
The  boards  were  never  delivered,  but  the  mare  remained  in  the 
possession  of  Pike  until  the  month  of  July,  1847,  when  she  was 
attached  by  the  defendant  as  the  property  of  Pike,  upon  a  debt 
against  him.  In  the  spring  of  1848  the  mare  brought  the  colt 
which  is  sued  for ;  and  the  plaintiff"  demanded  the  mare  and 
colt  of  the  defendant,  before  he  brought  his  suit.  The  defen- 
dant offered  to  show  that  previous  to  said  demand  upon  him 


IN    PERSONALTY — SALES.  213 

he  offered  and  tendered  to  the  plaintitl:"  tlie  sum  of  SlG,and  tlie 
interest  tliereon  I'roni  the  time  I'ike  reeeived  the  mare  of  tlie 
plaintit}',  hut  the  phiiiitiff  rei'used  to  receive  the  same.  'J'his 
evidence  tlie  Court  excluded. 

The  first  question  to  he  determined  in  this  case  is,  Avliether 
Pilie  had  any  attachahle  interest  in  the  mare  at  the  time  she 
was  attached  in  July,  1847. 

Under  the  doctrine  that  has  been  established  by  rc}ieated 
decisions  in  this  State,  in  relation  to  these  conditional  sales,  the 
generaf  property  in  the  mare  remained  in  the  plaintiff',  subject 
to  be  divested  by  the  performance  of  the  condition  of  payment 
of  the  boards  by  Pike;  and  the  performance  of  this  condition 
by  him  must  precede  the  vesting  of  any  title  in  himself:  West 
V.  Bolton,  4  Vt.  558.  Xothing  aii])ears  from  the  exceptions  in 
this  case,  that  there  had  been  any  new  agreement,  or  under- 
standing, between  the  plaintiff'  and  Pike,  as  to  his  having  any 
other  or  diff'e rent  right  to  the  mare,  beyond  such  as  he  acquired 
b}'  the  original  contract.  The  time  within  which  he  was  to 
deliver  the  boards  had  expired,  and  he  had  failed  to  perform 
the  condition  upon  which  depended  all  his  interest  in  the 
mare;  and  we  do  not  perceive  how,  as  between  himself  and  the 
plaintiff',  he  could  have  compelled  the  plaintiff'  to  receive  the 
$16  for  the  mare,  or  could  have  prevented  the  plaintiff'  from 
recovering  the  possession  of  her,  discharged  of  all  claim  on  his 
part,  or,  if  he  had  converted  the  mare  in  any  way,  how  he 
could  have  reduced  his  liability  below  the  value  of  the  mare. 
The  creditors  of  Pike  clearly  could  not,  by  attacliing  the  mare, 
acquire  any  higher  right  to  her  than  Pike  had  himself;  and, 
as  we  view  the  case,  Pike  had  at  the  time  of  the  attachment 
no  property  whatever,  either  general  or  special,  farther  than  a 
mere  possession,  in  the  mare,  and  no  interest  that  could  be 
attached.  The  plaintiff*,  being  the  owner  of  the  mare,  would 
also  be  equally  the  owner  of  the  colt. 

This  view  of  the  case  seems  to  dispose  of  all  the  questions 
raised  in  it;  for  the  tender  by  the  defendant  of  the  $1(3  and 
interest  is  based  entirely  upon  the  supposition  that  the  plain- 
tift*'s  claim  was  a  mere  lien  upon  the  mare  to  that  extent,  which 
the  defendant  might,  in  the  place  of  Pike,  step  in  and  remove 
by  payment  of  that  sum.  The  question  as  to  the  rule  of  dam- 
15 


214  ILLUSTRATIVE    CASES 

ages  is  also  raised  upon  the  same  view  of  the  plaintiffs  right; 
which  we  think  is  not  supported  by  the  facts  appearing  in  the 
case.  The  cases  of  West  v.  Bolton,  above  cited  ;  Bigelovv  v. 
Huntley,  8  Vt.  151 ;  Grant  v.  King  et  al,  14  Id.  367 ;  and  Smith 
V.  Foster,  18  Id.  182,  are  all  direct  authorities  in  support  of  the 
view  we  have  taken  of  this  case. 

It  is  urged  by  the  defendant's  counsel,  that  the  effect  of 
sustaining  the  decision  below  in  this  case  will  be  to  allow 
property  to  be  placed  and  kept  beyond  the  reach  of  creditors, 
and  lead  to  the  perpetration  of  frauds  by  dishonest  debtors ; 
and  it  is  very  possible  that  this  suggestion  may  not  be  wholly 
unfounded  ;  but  we  consider  the  doctrine  of  conditional  sales, 
and  of  the  rights  of  the  parties  under  thenj,  as  too  well  settled 
in  this  State  to  allow  any  interference  by  the  Court.  If  the 
contemplated  evils  shall  be  found  to  exist,  the  Legislature  can 
easily  provide  a  remedy. 

Judgment  affirmed. 

Hcnick  v.  Carter,  56  Barb.  41 ;  So.  Australian  Ins.  Co.  v.  Raudal, 

Flanagan  v.  Hutchinson,  47  Mo.  L.  R.,  3  P.  C.  101 ; 

237.  Peckham  v.  Peckhani,   13  R.   I. 

Stocks—  254 ; 

Humaston  v.  Am.  Tel.  Co.,  20  Caldwell  i'.  Yale,  11  Mich.  77  ; 

Wal.  20  ;  Loomis  v.  Waiuwright,  21  Vt.  520. 


c. 

Money  Paid. 

Woodruff  v.  Graddy  et  al. 

Supreme  Court  of  Georgia,  1893. 

17  S.  E.  Rep.  264. 

Lumpkin,  J.  In  October,  1890,  Graddy  &  Son,  of  Versailles, 
Ky.,  sent  to  George  W,  Woodruft",  of  Columbus,  Ga.,  by  mail, 
a  sample  of  wheat,  accompanied  by  a  letter  offering  to  sell  him 
10,000  bushels,  to  be  delivered  in  November,  "  weights  and 
goods  warranted  to  within  one  per  cent."  Woodrufi"  replied 
by  telegram,  asking  the  price  of  10,000  bushels  equal  to  sample, 


IN   PERSONALTY — SALES.  215 

and  Graddy  &  Son,  by  telegram,  quoted  5000  bushels  at  $1.17, 
^vherc'U[)on  "Woodruff  telegraphed  them,  sayhig:  "Accepted 
like  sample,  and  sweet.  Await  whipping  instructions  by  mail." 
On  the  same  day  he  offered  by  telegram  $1.10  per  bushel  for 
an  additional  lot  of  4000  bushels,  "equal  to  sam})le,"  and  this 
offer  was  accepted.  lie  also  wrote  a  letter  saying  that  he  ac- 
cepted the  5000  bushels  at  $1.17,  and  stating  therein  "  The 
wheat  must  be  equal  to  sample,  sweet  and  sound."  Some  addi- 
tional telegrams  and  letters  passed  between  the  parties  relating 
to  the  order  for  4000  bushels,  but  these  are  not  pertinent  to 
the  present  discussion.  Graddy  &  Son  shipped  the  lot  of  5000 
bushels,  and,  according  to  Woodrufl''s  evidence,  about  800 
bushels  of  the  4000,  all  consigned  to  their  own  order,  and 
drew  on  Woodruff  for  the  price  of  the  wheat  shipped,  attach- 
ing to  their  draft  indorsed  bills  of  lading,  which  controlled  the 
possession  and  delivery  of  the  wheat.  The  draft  was  presented 
before  the  arrival  of  the  wheat,  and  Woodruff  refused  to  pay 
it,  whereupon  G.  C.  Graddy,  one  of  the  firm  of  Graddy  &  Son, 
went  to  Columbus,  to  see  him  about  the  matter,  and  insisted 
upon  a  payment  on  the  contract.  Woodruff  still  objected  to 
paying  the  money  until  the  wlieat  arrived.  Graddy  then  as- 
sured him  that  the.  wheat  shipped  was  as  good  as  the  sample, 
and  upon  the  faith  of  this  assurance  Woodruff  paid  I'O  cents  a 
bushel  upon  the  wheat  which  had  been  shipped,  and  Graddy 
delivered  to  him  the  bills  of  lading,  which  entitled  Woodruff 
to  receive  the  wheat  from  the  railroad  upon  its  arrival.  This, 
we  think,  constituted  an  executed  and  complete  sale  of  the 
wheat.  ]3y  giving  up  the  indorsed  bills  of  lading,  Graddy  & 
Son  parted  with  their  title  to  and  control  of  the  wheat,  and  it 
became  the  absolute  property  of  Woodruff.  Ko  other  person 
then  had  the  right  to  demand  the  wheat  from  the  railroad 
company,  and  undoubtedly  it  would  have  been  subject,  as  the 
pi'opcrty  of  Woodruff,  to  a  judgment  or  other  lien  against  him. 
Whatever  may  have  been  the  legal  effect  of  the  letters  and  tele- 
grams above  referred  to,  and  ^^  hich  led  up  to  the  consumma- 
tion of  the  sale,  we  think  the  final  terras  thereof  were  embodied 
in  the  agreement  made  between  Graddy  and  Woodruff  at  the 
time  the  latter  paid  the  money,  and  received  in  return  the  bills 
of  lading.     If  Graddy 's  assurance  did  not,  under  the  circum- 


216  ILLUSTRATIVE    CASES 

stances,  amount  to  an  express  warrantv  on  the  part  of  his  firm 
that  the  wheat  then  en  route  to  Columbus  was  as  good  as  the 
sample  in  question,  it  certainly  did  at  least  raise  an  implied 
warranty  to  this  eftect ;  and  the  sale,  as  already  shown,  being 
executed,  it  was  immaterial,  for  the  purposes  of  this  case, 
whether  the  warranty  was  exj)res8  or  implied.  After  this 
transaction,  the  wheat,  in  contemj)lalion  of  law,  was  in  Wood- 
rufi''s  possession,  and  was  his  property.  What  he  did  really 
amounted  to  an  acceptance  of  it  without  inspection.  When  it 
finally  arrived,  no  matter  what  its  condition  may  have  been,  it 
was  his  wheat,  and  he  had  no  right  to  rescind  the  contract  and 
refuse  to  use  it ;  nor  was  he  under  any  obligation  to  offer  to 
return  it,  but  did  have  the  undoubted  right  to  stand  upon  the 
warranty  he  had  received:  Code,  §  2652;  Clark  v.  Neufville, 
46  Ga.  261.  In  the  case  cited  it  was  also  held  that,  if  there 
be  fraud  in  the  sale,  the  rule  is  dift'erent,  and  the  vendee  may 
rescind.  The  element  of  fraud,  as  a  basis  of  rescission,  is  not 
referred  to  in  the  second  headnote,  in  which  it  is  ruled  that  a 
buyer  cannot  rescind  without  returning,  or  offering  to  return, 
the  goods  ;  but  this  headnote  niust,  ol'  course,  be  understood  as 
applicable  only  in  cases  where  the  buyer  has  a  right  to  rescind. 
Thus  understood,  the  headnote  and  opinion  fully  sustain  what 
is  ruled  in  the  case  at  bar. 

Suit  was  brought  by  Graddy  &  Son  for  the  balance  due,  at 
the  contract  price,  on  the  wheat  delivered,  and  for  damages 
alleged  to  have  been  sustained  by  \Voodruft''s  failure  to  accept 
the  balance  contracted  for.  The  defence  was  that  the  wheat 
failed  to  come  up  to  the  sample  by  which  it  was  sold,  and  was 
worth  15  cents  per  bushel  less  than  it  would  have  been  if  equal 
to  sample,  and  Woodruff  sought  to  set  off  and  recoup  against 
plaintiff's  action  the  damages  he  had  thus  sustained.  The 
charge  of  the  Court  on  this  subject,  the  substance  of  which  is 
stated  in  the  headnote,  cut  him  off  from  so  doing,  for  it  was 
virtually  admitted  that  he  fully  kricw  the  condition  of  the 
wheat  before  he  unloaded  it  from  the  cars  and  used  it.  The 
view  of  the  trial  Judge  was  that,  if  Woodruff,  after  examining 
and  inspecting  the  wheat  and  discovering  its  condition,  received 
it  into  his  mill  and  used  it,  he  should  be  held  to  have  waived 


IN    PERSONALTY  —  SALES.  217 

any  right  to  complain  of  its  defective  condition,  and  was  bound 
to  pay  the  full  contract  price.  "Wiiatever  may  be  the  law 
applicable  in  a  case  where  the  sale  is  executory,  and  it  is  not 
contemplated  by  the  [)arties  that  it  shall  be  complete  until  after 
inspection  and  actual  and  formal  acceptance  of  the  goods  by 
the  purchaser,  we  are  quite  confident  tljat  in  the  present  case 
the  sale  was  executed  and  fully  consummated  befo.e  the  wheat 
arrived  ;  that  Woodruti',  by  accepting  and  acting  upon  the 
warranty  of  Graddy  &  Son,  whether  express  or  implied,  and 
relying  on  the  same  in  parting  with  his  money,  had  waived  his 
right  to  inspect  the  wheat  or  to  reject  it  if  found  defective 
and  not  equal  to  sample ;  and  it  must  follow  as  an  inevi- 
table conclusion  that,  being  placed  in  this  position,  he  could 
protect  himself  from  loss  by  holding  Graddy  &  Son  to  the  war- 
ranty, and  making  them  liable  for  a  breach  thereof.  This,  we 
think,  accords  both  with  sound  law  and  with  sound  justice, 
and,  as  already  stated,  is  supported  by  the  Code  and  decision 
of  this  Court  above  cited.  It  is  quite  probable  that  the  Court 
below  treated  the  sale  as  being  executory  until  inspection  and 
formal  acceptance  of  the  goods,  and  counsel  on  both  sides  in 
thearirument  here  seemed  to  take  this  view  of  it.  But  a  thor- 
ough  examination  of  the  evidence  has  convinced  us  that,  under 
the  undisputed  facts,  the  sale  was  really  complete  before  the 
wheat  ever  arrived  in  Columbus,  and  we  have  therefore  ruled 
upon  the  case  accordingly.  We  have  not,  of  course,  intended 
to  express  or  to  intimate  any  opinion  as  to  what  was  the  actual 
condition  of  the  wheat  on  its  arrival,  or  whether  it  was  or  was 
not  equal  to  sample.  The  plaintitfs  below  insisted  that  it  was, 
and  introduced  testimony  in  support  of  this  contention.  The 
evidence  offered  by  the  defence  was  to  the  contrary.  What- 
ever may  have  been  the  real  truth  upon  this  question,  and  even 
though  the  jury  might  have  believed  from  the  evidence  that 
the  wheat  was  in  fact  much  inferior  to  the  sample,  the  verdict 
rendered  in  favor  of  the  plaintiffs  was  inevitable  under  the 
charge  of  the  Court  complained  of,  for  it  was  not  contended 
by  Woodruff  that  he  was  not  fully  informed  as  to  the  condi- 
tion of  the  wheat  before  he  unloaded  it  from  the  cars  and  used 
it  in  his  miU.     The  case  should  be  tried  over  again  upon  the 


218  ILLUSTRATIVE    CASES 

line  indicated,  the  jury  being  left   to  decide  the  questions  of 
iact  involved  under  proper  instructions  from  the  Court. 
Judgment  reversed. 


D. 

Money  Promised. 

Ella  M.  Hayden  v.  Thomas  Dwyer  et  al. 

Supreme  Court  of  Minnesota,  1891. 
47  Minn.  246. 

Statement  of  facts :  One  Steele  sold  to  Ella  M.  Hayden  cer- 
tain horses,  mules,  and  other  chattels  for  $1330,  she  promising 
to  surrender  a  note  for  $700  which  she  held  against  him,  and 
also  to  give  her  note  for  $630,  which  latter  note  was  to  be 
delivered  to  Payne  &  Catling,  attorneys,  and  then  the  property 
was  to  be  delivered  to  her  with  a  bill  of  sale  thereof.  She 
surrendered  Steele's  note  and  delivered  her  own  as  per  agree- 
ment, but  Steele,  having  meantime  sold  the  property  to  Thomas 
Dwyer,  who  had  notice  of  the  previous  sale,  the  delivery  thereof 
to  her  was  not  made.  Whereupon  the  said  Ella  M.  Hayden 
brings  this  action  against  Dwyer  and  Steele  to  recover  for  the 
conversion  of  the  said  property. 

GiLFiLLAN,  C.  J.  There  is  in  this  case  nothing  in  any  as- 
signment of  error,  based  on  exceptions  taken,  that  requires 
special  mention.  As  soon  as  plaintiff,  under  the  agreement 
with  Steele,  left  her  note  in  the  office  of  Payne,  she  had  com- 
plied with  the  terms  of  the  contract  of  sale  of  the  property 
to  her,  the  title  passed  to  her,  and  she  was  entitled  to  the 
bill  of  sale,  which  after  that  time  was  in  the  hands  of  Payne 
as  her  ao-ent.  If  Dwyer  after  that  took  a  transfer  from  Steele, 
with  notice  that  plaintiif  had  purchased  the  property,— as 
from  the  evidence  the  jury  might  have  found,  and  as  we  must 
presume  they  did  find,— then  he  could  not  be  a  bona  fide  pur- 
chaser, and  it  was  immaterial  that  the  possession  of  the 
property  remained  in  the  vendor. 

Order  affirmed. 


IN    PERSONALTY — SALES.  219 

E. 

Price  fixed  by  parties. 

Paddock  v.  Davenport. 

Supreme  Court  of  North  Carolina,  1890. 

12  S.  E.  Ecp.  4G4. 

Shepherd,  J.  Two  causes  of  action  are  set  out  in  the  com- 
plaint, one  for  damages  for  breach  of  the  contract,  and  the  other 
for  its  specific  performance.  The  Court  held,  upon  demurrer, 
that  neither  of  the  said  causes  of  action  could  be  maintained. 

1.  As  to  the  cause  of  action  against  the  defendant,  Daven- 
port, we  think  that  there  was  error  in  the  ruling  that  the  con- 
tract for  the  sale  of  the  trees  was  void  for  want  of  considera- 
tion. The  paper  writing  sued  upon  is  substantially  an  ofier  to 
sell  the  trees  at  a  certain  price  witliin  60  days.  There  being 
no  consideration  for  the  ofier,  it  could  have  been  withdrawn  at 
any  time  within  the  period  mentioned  before  acceptance  by  the 
plaintiff.  The  oft'er,  however,  was  not  so  withdrawn,  and,  the 
plaiiitifl:'  having  accepted  it  within  the  stipulated  time,  it  be- 
came a  binding  contract,  for  the  breach  of  which  the  said  de- 
fendant is  answerable  in  damages :  1  Benj.  Sales,  50,  and  the 
numerous  cases  cited  in  the  notes.  The  ofier  of  the  plaintifi^to 
pay  the  price,  and  mai'k  the  trees,  and  the  refusal  of  Daven- 
port to  receive  the  money,  and  to  allow  the  trees  to  be  marked, 
was  sufiicient,  in  our  opinion,  to  constitute  a  valid  acceptance. 
There  was,  therefore,  eri'or  in  the  ruling  as  to  this  cause  of 
action. 

2.  The  second  cause  of  action  is  for  specific  performance, 
both  against  Davenport,  who  executed  the  contract,  and  Thrash, 
who  purchased  of  him  with  notice  of  the  claim  of  the  plaintift". 
The  true  princij)le  upon  which  specific  performance  is  deci-eed 
does  not  rest  simply  ujton  a  mere  arbitrary  distinction  as  to 
difi'ercnt  species  of  jirojiert}',  but  it  is  founded  upon  the  inade- 
quacy of  the  legal  remedy  by  wjiy  of  pecuniary  damages.  This 
principle  is  acted  upon  (1)  where  there  is  a  peculiar  value 
attached  to  the  subject  of  the  contract  which  is  not  compensa- 


220  ILLUSTRATIVE    CASES 

ble  in  damages.  The  law  assumes  land  to  be  of  this  character 
"  simply  because,"  says  Pearson,  J.,  in  Kitchen  v.  Herring,  7 
Ired.  Eq.  191,  "  it  is  land,  a  favorite  and  favored  subjecttin 
England,  and  every  country  of  Anglo-Saxon  origin."  The  law 
also  attaches  a  peculiar  value  to  ancient  family  pictures,  title- 
deeds,  valuable  paintings,  articles  of  unusual  beauty,  rarity, 
and  distinction,  such  as  objects  of  verta.  A  horn  which,  time 
out  of  mind,  had  gone  along  with  an  estate,  and  an  old  silver 
patera,  bearing  a  Greek  inscription  and  dedication  to  Hercules, 
were  held  to  be  proper  subjects  of  specific  pciformance.  These, 
said  Lord  Eldon,  turned  upon  the  pi^ttium  ojfectionis,  which 
could  not  be  estimated  in  damages.*  So,  for  a  faithful  family 
slave,  endeared  by  a  long  course  of  service  or  early  association, 
Chief  Justice  Taylor  remarked  that  "no  damages  can  compen- 
sate, for  there  is  no  standard  by  which  the  price  of  aft'eetion 
can  be  adjusted,  and  no  scale  to  graduate  the  feelings  of  the 
heart:"  Williams  v.  Howard,  3  Murjih.  80.  The  principle  is 
also  applied  (2)  where  the  damages  at  law  are  so  uncertain  and 
unascertainable,  owing  to  the  nature  of  the  property  or  the 
cirumstanccs  of  the  case,  that  a  specitic  performance  is  indis- 
pensable to  justice.  Such  was  formerly  held  as  to  the  shares 
in  a  railway  company,  which  diiier,  says  the  Court,  in  Ashe  v. 
Johnson,  2  Jones,  Eq.  149,  from  the  funded  debt  of  the  govern- 
ment, in  not  always  being  in  the  market  and  having  a  specific 
value:  also  a  patent  (Corbin  v.  Tracy,  34  Conn.  325);  a  con- 
tract to  insure  (Carpenter  v.  Insurance  Co.,  4  Sandf.  Ch.  408) ; 
and  like  cases.  The  general  principle  everywhere  recognized, 
however,  is  that,  except  in  cases  falling  within  the  foregoing 
principles,  a  Court  of  equity  will  not  decree  tlie  specific  per- 
formance of  contracts  for  personal  property  ;  "  for,"  remarks 
Pearson,  J.,  in  Kitchen  v.  Herring,  supra,  "  if  with  money,  an 
article  of  the  same  description  can  be  bought,  .  .  .  the  remedy 
at  law  is  inadequate."  See,  also.  Pom.  Spec.  Perf.  14.  Apply- 
ing these  principles  to  the  facts  alleged  in  the  complaint,  it 
must  follow,  we  think,  that  this  is  not  a  case  which  calls  for 
the  exercise  of  the  equitable  power  of  the  Court.  The  trees 
were  purchased  with  a  view  to  their  severance  from  the  soil, 

'  Not  reported. 


IN    PERSONALTY — SALES.  221 

and  tluis  being  converted  into  jiorsonal  [iroperty  It  is  not 
sliown  that  they  have  any  peculiar  vahie  to  the  jilaintitt",  nor 
do  there  appear  any  circumstances  from  which  it  may  be  in- 
ferred that  the  breach  of  the  contract  may  not  be  readily  com- 
pensated for  in  damages.  Xeither  is  it  shown  that  other  trees 
may  not  be  purchased,  but  it  is  simply  alleged  that  they  are 
scarce  at  the  contract  price.  The  sinii»le  fact  that  they  are  near 
a  water-course  does  not  alter  the  case,  for  the  convenience  of 
transportation  are  elements  which  may  be  considered  in  the 
estimation  of  the  daniages.  Neither  is  the  circumstance  that 
the  plaintitf  purchased  "a  few  trees  of  like  kind,"  in  the  vicin- 
ity, sufficient  to  warrant  the  equitable  intervention  of  the  Court. 
We  can  very  easily  conceive  of  cases  in  which  contracts  of  this 
nature  may  be  specifically  enforced,  but  we  can  see  nothing  in 
this  complaint  which  calls  for  such  extraordinary  relief.  The 
ruling  of  the  Court  as  to  this  branch  of  the  case  is  sustained. 
As  to  the  other  cause  of  action,  it  is  reversed. 


Provision   made  by  parties   for   ascertaining   price. 

McCoNNELL  V.  Hughes. 

Supreme  Court  of  Wisconsin,  1872. 

29  Wis.  537. 

On  February  7,  1870,  plaintiif  sold  to  defendant  over  800 
bushels  of  wheat  at  an  agreed  price  of  ten  cents  per  bushel  less 
than  the  price  of  wheat  at  Milwaukee,  on  any  day  thereafter 
which  the  plaintitf  should  name,  and  he  named  March  24, 1870, 

Lyon,  J.  The  bill  of  exceptions  does  not  purport  to  contain 
all  of  the  evidence. 

We  cannot,  therefore,  review  the  evidence,  but  must  presnme 
that  it  sustains  the  findings  of  fact  by  the  Circuit  Court.  That 
Court  having  found  that  the  material  allegations  of  the  corn- 
plaint  were  proved,  it  follows  that  if  the  complaint  states  a 
valid  cause  of  action,  the  plaintift'  was  entitled  to  judgment. 

We  think  that  the  complaint  does  state  a  valid  cause  of  ac- 
tion.    It  avers  that  an  executory  contract  for  the  sale  and  pur- 


222  ILLUSTRATIVE    CASES 

chase  of  wheat  was  made  by  the  parties,  and  that,  in  pursuance 
thereof,  the  plaintitf  delivered  to  the  defendants,  and  the  de- 
fendants accepted  and  received  the  wheat.  It  must  be  true 
that  by  such  delivery  and  acceptance  the  title  to  the  wheat  be- 
came vested  in  the  defendants,  and  the  right  to  have  the  price 
therefor,  when  the  same  should  be  determined  as  provided  in 
the  contract,  in  like  manner  became  vested  in  the  plaintif}'. 

But  it  is  urged  on  behalf  of  the  defendants  that  the  transac- 
tion was  invalid  as  a  sale,  because  the  contract  did  not  limit 
the  plaintiif  to  the  selection  of  any  particular  day,  or  of  a  daj^ 
within  a  specified  time,  on  which  the  market  price  of  wheat  in 
Milwaukee  should  control  the  price  of  the  wheat  in  question, 
but  left  him  the  option  to  select  any  day  in  the  future  for  the 
purpose  of  fixing  the  price. 

The  contract  furnishes  a  criterion  for  ascertaining  the  price  of 
the  wheat ;  leaving  nothing  in  relation  thereto  for  further  nego- 
tiation between  the  parties.  This  is  all  that  the  law  requires: 
Story  on  Sales,  §  220.  No  case  has  been  cited,  and  we  are  un- 
able to  find  one,  which  holds  that  it  is  essential  to  the  validity 
of  a  sale  in  such  cases  that  the  criterion  agreed  upon  should, 
by  the  terms  of  the  contract  of  sale,  be  applied,  and  the  price 
thereby  determined,  on  any  specified  day  or  within  a  spe<;ified 
time.  Judge  Story,  in  the  section  of  his  treatise  above  cited, 
evidently  does  not  intend  to  lay  down  any  such  rule.  It  may 
be  that,  if  the  plaintiff  had  delayed  unreasonably  to  make  such 
selection  after  being  requested  to  make  the  same,  he  might  be 
compelled  to  do  so.     But  we  do  not  decide  this  point. 

It  is  further  argued  that,  after  a  valid  sale  and  before  pay- 
ment of  the  price,  there  nmst  be  a  debt  owing  by  the  vendee  to 
the  vendor,  while  in  this  case,  until  the  price  of  the  wheat  was 
ascertained,  there  was  no  indebtedness.  The  latter  part  of  this 
proposition  is  erroneous.  As  soon  as  the  wheat  was  delivered, 
the  defendants  owed  the  plaintiif  therefor.  There  was  therefore 
a  debt,  but  the  amount  thereof  was  not  ascertained.  It  remained 
unliquidated  until  the  price  of  the  wheat  was  determined. 

The  objections  that  the  assessor  could  not  list  the  claim  for 
the  price  of  the  wheat  for  taxation,  and  that  the  same  could  not 
be  reached  by  garnishee  process  at  the  suit  of  a  creditor  of  the 
plaintifl:',  while  such  price  remained  undetermined,  present  no 


IN    PEESUNALTY — 6ALES.  223 

practical  difficulties.  The  assessor  would  fix  the  value  of  the 
demand  according  to  his  best  judgment,  as  in  other  cases  of 
the  valuation  of  property  and  credits;  and  the  creditor  in  the 
garnishee  proceeding  would  probably  be  subrogated  to  the 
rights  of  the  plaintift'  in  respect  to  determining  tlie  contract 
price  for  the  wheat. 

By  the  Court. — The  judgment  of  the  Circuit  Court  is  af- 
iirmed. 


F. 

Price  submitted  to  referee. 

Xewlan  v.  Dunham. 

Supreme  Court  of  Illinois,  1871. 

60  111.  233. 

Mr.  Justice  Walker  delivered  the  opinion  of  the  Court. 

This  was  an  action  of  assumpsit,  brought  by  appellee  in  the 
Kane  Circuit  Court,  against  appellant.  A  trial  was  had  by  the 
Court  and  a  jury,  resulting  in  a  verdict  and  judgment  in  favor 
of  plaintiff,  from  which  defendant  has  prosecuted  this  appeal. 
It  appears  that  sometime  in  July,  1870,  appellant  contracted 
witli  appellee  to  sell  him  a  rpnintity  of  hay  in  the  stack,  at  $7 
per  ton,  and  that  the  parties  mutually  agreed  that  Lasher  and 
Lynch  should  measure  and  ascertain  the  amount  the  lot  con- 
tained, to  be  paid  for  in  checks  on  Coffin  &  Tallman's  bank, 
one-third  in  thirty,  one-third  in  sixty,  and  the  remaining  third 
in  ninety  days ;  that  the  persons  selected  made  the  measure- 
ment, and  determined  the  stacks  contained  one  hundred  and 
two  tons.  Appellee  testifies  that  after  they  had  signed  tlie 
agreement  appointing  the  persons  to  ascertain  the  amount,  lie 
and  appellant  agreed  that  five  tons  should  be  deducted  on  ac- 
count of  an  injured  spot  in  one  of  tlie  stacks.  This  is  denied 
by  appelUmt. 

AMicn  the  persons  selected  for  the  purpose  reported  the 
amount  the  stacks  containeJ,  appellee  ofiered  checks  upon  the 
bank  for  the  sum  that  ninety-seven  tons  of  liay  amounted  to 


224  ILLUSTKATIVE    CASES 

at  the  contract  price,  but  appellant  reiused  to  receive  them  or 
give  him  a  bill  of  sale  for  the  hay  as  requested  by  appellee. 

It  is  lirst  urged  that  the  Court  below  erred  in  refusing  to 
exclude  plaintiff's  evidence  from  the  jury  on  account  of  a  vari- 
ance. The  declaration  avers  the  purchase  of  the  hay  in  the 
stacks  at  a  given  price  per  ton,  the  amount  to  be  ascertained 
by  measm-ement  made  by  the  persons  they  cliose,  and  that 
they  ascertained  the  amount  to  be  ninety-seven  tons,  whilst 
their  report  shows  that  they  found  the  stacks  to  contain  one 
hundred  and  two  tons.  It  will  be  observed  that  the  certiticate 
of  the  amount  of  hay  the  stacks  were  found  to  contain  is  not 
declared  on,  or  even  referred  to,  in  the  declaration.  And  it  has 
been  held  that,  in  such  a  case,  where  an  instrument  in  writing 
is  offered  in  evidence  to  prove  an  allegation,  a  variance  cannot 
be  relied  upon  for  its  rejection  if  it  tends,  substantially,  to 
prove  the  averment :  Prather  v.  Vineyard,  4  Gilm.  40;  Wheeler 
V.  Reed,  36  111.  81.  This  certificate,  with  the  evidence  intro- 
duced of  the  contract  of  the  jiarties,  shows  that  five  tons  were 
to  be  deducted  and  the  remainder  to  be  paid  for,  and  this,  sub- 
stantially, sustains  the  averment.  Ninety-seven  tons  were  all 
they  found  appellee  was  bound  to  pay  for,  although  there  were 
one  hundred  and  two  tons  in  the  stacks. 

It  is  next  urged  that  the  Court  erred  in  not  permitting  ap- 
pellant to  prove  that  there  was  a  mistake  in  the  computation 
of  the  number  of  tons  of  hay.  In  the  cases  of  Canal  Trustees 
V.  Lynch,  5  Gilm.  521;  McAvoy  v.  Long,  13  111.  147 ;  and  Cen- 
trafMilitary  Tract  Railroad  v.  Spurck,  24  111.  587,  it  was  held 
that  when  parties  selected  a  person  to  make  computations,  they 
were  bound  by  his  calculations ;  that  it  was,  when  made,  con- 
clusive upon  the  parties,  and  could  only  be  impeached  or  ques- 
tioned for  fraud.  But  we  are  referred  to  the  case  of  McAuley 
V.  Carter,  22  III.  57,  as  holding  that  such  a  calculation  or  deci- 
sion may  be  questioned  for  fraud  or  mistake.  The  rule  is,  that 
fraud  in  an  award  may  be  shown  either  at  law  or  in  equity, 
whilst  mistake  is  only  cognizable  in  the  latter  forum.  A  mis- 
take could  not  be  shown  in  this  action,  as  it  was  at  law.  But 
even  if  it  could  be  conceded  that  a  mistake  could  be  shown  at 
law,  still  there  is  nothing  in  this  record  showing  that  the  per- 


IN    PERSONALTY — SALES.  225 

sons  making  the  calculation  were  clearly  misled,  "leludcd,  or 
misapprehended  the  tacts. 

But,  whether  projierly  or  not,  the  Court  permitted  the  wit- 
nesses to  give  the  hasis  u{)()ii  which  the  conijiutation  was  made; 
they  stated  tlie  height,  length,  and  breadth  of  the  stacks,  and 
the  number  of  cubic  feet  they  estimated  was  contained  in  a  ton. 
Thus  the  jury  had  ample  means  to  determine  the  accuracy  of 
their  calculation,  and  we  will  presume  they  tested  its  accuracy 
to  determine  whether  there  was  any  fraud,  as  the  evidence  was 
admitted  for  that  purpose;  as,  if  a  gross  discrepancy  had  ap- 
peared, the  jury  might  have  inferred  that  the  comi)Utation  was 
fraudulently  made. 

It  is  further  objected,  tliat  the  Court  erred  in  refusing  to 
permit  appellant  to  prove  the  market  j)rice  of  hay  in  Aurora. 
AVe  perceive  no  objection  to  this  decision  of  the  Court.  The 
question  was,  what  was  the  hay  worth  at  or  near  the  place 
where  it  was  to  be  delivered,  and  not  at  distant  points.  Clin- 
tonville,  and  not  Aurora,  was  the  i)lace  where  the  transaction 
occurred,  and  where  the  delivery  was  to  be  made,  and  the  price 
in  that  neighborhood  should  have  controlled.  In  this  there 
was  no  error. 

It  is  also  urged,  that  the  Court  erred  in  not  requiring  Lasher, 
at  the  instance  of  appellant,  to  make  the  calculation  of  the 
amount  of  hay  in  the  [jresence  of  the  jury.  AVe  know  of  no 
rule  of  evidence  that  would  require  a  witness  to  make  such  a 
calculation,  even  where  he  might  be  required  to  state  the  basis 
and  principles  nj)on  which  he  had  conducted  his  calculation. 
If  it  was  designed  to  show  that  he  could  not  make  the  estimate, 
why  not  ask  him  if  he  could  have  done  it?  Tiie  witness  had 
already  stated  that  Lynch,  and  not  himself,  made  the  calcula- 
tion;  but,  even  if  he  had  to  depend  upon  Lynch  for  the  pur- 
pose, we  fail  to  perceive  that  it  could  have  atfected  the  rights 
of  appellant,  as  the  estimates  were  njade  by  tlie  man  whom  he 
had  chosen,  and  the  parties  agreed  to  abide  the  decision  of  the 
arbitrators.     We  can  see  no  force  in  this  objection. 

It  is  also  objected,  that  appellant  was  not  bound  to  delivir 
the  hay  because  the  checks  were  not  properly  stamped.  This 
objection  was  not  urged  when  they  were  ollered,  nor  were  they 
refused  because  they  were  net  ccrtitlcd.     The  refusal  was  clear 


226  ILLUSTRATIVE    CASES 

and  positive,  on  the  ground  that  there  was  nsore  hay  than  was 
estimated  by  the  persons  to  whom  it  had  been  referred.  It  is 
manifest,  from  the  evidence,  that  they  would  have  been  refused 
even  had  they  been  properly  stamped  and  certified.  If  that  had 
been  the  objection  to  receiving  them,  he  should  have  n)ade  it 
when  they  were  tendered.     There  is  nothing  in  this  objection. 

Nor  do  we  see  any  error  in  instructing  the  jury.  The  proper 
legal  principles  contained  in  those  refused,  were  embodied  in 
others  thnt  were  given,  and  the  other  refused  instructions,  asked 
by  appellant,  were  improper,  and  were  correctly  refused.  Tlie 
evidence  warranted  the  finding,  and  we  find  no  error  in  the 
record,  and  the  judgment  must  be  affirmed. 

Judo-ment  affirmed. 

G. 

Referee's  failure  to  act. 

Smyth  v.  Craig. 

Supreme  Court  of  Pennsylvania,  1841. 

.3  W.  &  S.  14. 

Gibson,  C.  J.  The  statute  by  which  the  Court  below  is  con- 
stituted, directs  that  when  the  defendant  shall  have  given  no  evi- 
dence, the  presiding  Judge  may  direct  a  nonsuit,  if  the  plaintifl^s 
evidence  be  insufficient  in  his  opinion  to  make  out  a  case ;  and 
hence  it  results,  not  only  that  the  evidence  must  be  taken  to  be 
true,  but  that  every  inference  of  fact  which  a  jury  might  draw 
from  it  in  favor  of  the  plaintiff,  must  be  drawn  by  the  Judge: 
else  the  plaintiff  might  be  deprived  of  his  constitutional  privi- 
lege, and  the  statute  would  be  so  far  void.  In  such  a  case, 
th'erefore,  the  defendant's  prayer  for  a  nonsuit  is  effectively  a 
demurrer  to  evidence,  with  this  limitation,  that  the  Judge  is 
not  at  liberty  to  give  judgment  for  the  plaintiff  should  he  think 
the  case  made  out :  in  that  event  the  nonsuit  is  refused,  and  the 
cause  is  put  to  the  jury.  What  then  is  the  case  which  a  jury 
might  deduce  from  the  evidence  before  us? 

The  defendant,  Smyth,  being  pressed  for  payment  by  Craig, 
Bellas  &  Co.,  consented  to  let  the  molasses  in  question  stand  in 


IN    PERSONALTY — SALES. 


the  yard  of  liis  distillery,  eitlier  us  their  property,  or  as  col- 
lateral security,  baton  condition  that  they  wouKl  take  his  notes 
at  sixty  and  ninety  days,  in  lieu  of  the  one-half  cash,  and  the 
other  at  sixty  days,  as  he  had  promised  them.  He  pointed  out 
the  molasses,  consisting  of  four  hundred  hogsheads,  to  be  ascer- 
tained by  counting  them  off  in  rows  from  a  jjarticular  i)oint, 
and  in  a  particular  way.  He  agreed  to  send  them  the  rum  he 
should  distil  from  the  article,  to  be  sold  by  them  and  the  pro- 
ceeds ai)plied  to  his  debt ;  and  on  these  terms,  in  the  tirst  in- 
stance, the  matter  was  arranged. 

Had  it  rested  there,  the  plaintiif,  or  the  firm  he  represents, 
could  not  have  recovered  as  in  the  case  of  a  pawn  ;  for  at  this 
time  there  was  no  delivery  of  possession,  and  consequently  no 
pawn.  Indeed,  retention  of  possession  was  necessarily  a  part  of 
the  arrangement,  because  it  was  indispensable  to  enable  the 
defendant  to  carry  the  other  parts  of  it  into  effect. 

But  subsequently  to  the  defendant's  failure,  which  occurred 
shortly  afterwards,  he  sold  and  agreed  to  deliver  to  Craig, 
Bellas  &  Co.,  three  hundred  and  lifty  of  these  hogsheads,  as 
well  as  twenty-live  hogsheads  of  rum  distilled  in  the  mean  time 
from  the  other  fifty,  and  set  apart  in  a  shed,  the  Avhole  to  be 
gauged  and  the  price  fixed  at  their  warehouse  by  Stevens,  a 
grocer ;  and  this  done,  the  notes  previously  given  were  to  bo 
delivered  up.  Next  morning  he  repeated  the  conditions  of  the 
sale,  and  told  the  purchasers  to  go  to  the  yard  and  mark  the 
hoo-sheads  according  to  the  former  method  of  ascertainment, 
promising  to  meet  them  there,  and  directing  them  to  haul  away 
without  further  delivery  should  he  fail  to  attend.  They  ac- 
cordingly marked  both  the  rum  and  the  molasses  with  the 
initials  of  the  firm  ;  the  notes  were  withdrawn  from  bank  for 
delivery,  but  handed  to  the  plaintiff,  who  had  taken  the  place 
of  the  firm  ;  and  they  were  tendered  to  the  defendant,  who  re- 
fused to  receive  them  or  i»art  with  the  property.  The  questi(tn 
then  is,  whether  there  is  enough  in  these  facts  to  constitute 
a  sale  on  the  general  principles  of  the  contract  unaffected  by 
positive  provisions,  such  as  those  of  the  British  Statute  of 
Frauds,  which  are  not  in  force  here. 

The  subject  of  the  sale  was  sutHciently  certain.  The  rum 
was  in  a  shed  by  itself;  and  the  rows  of  hogsheads  containing 


228  ILLUSTRATIVE    CASES 

the  molasses  were  particularly  designated.  Even  without  such 
designation,  the  lot  would  have  been  sufficiently  ascertained 
by  the  marking,  pursuant  to  the  vendor's  direction.  A  sale 
of  articles  to  be  selected  by  the  vendee  is  certain  enough,  after 
selection  made.  Here  the  particular  hogsheads  had  been 
marked  by  the  vendor's  assent,  and  whether  with  a  view  to 
delivery,  it  was  properly  the  province  of  the  jury  to  say  ;  for 
that  the  separating  of  particular  goods  from  a  larger  quantity, 
preparatory  to  actual  delivery,  is  constructive  delivery  in  point 
of  law,  was  affirmed  by  Lord  Loughborough  in  the  celebrated 
case  of  Lickbarrow  v.  Mason,  1  IL  B.  363,  and  here  the  hogs- 
heads were  marked  expressly  by  the  vendor's  direction,  in 
order  that  the  vendees  might  take  possession  of  them  without 
any  further  act  to  be  done  by  him.  So  far  then  as  the  fact  of 
delivery  is  involved  in  the  question,  the  sale  seems  pretty 
clearly  to  have  been  executed  ;  but  the  fact  is  nevertheless 
determinable  by  a  jury  having  regard  to  the  intention  of  the 
parties  in  the  marking  and  separation. 

The  pinch  of  the  case,  however,  is  to  determine  whether  the 
vendor  was  at  liberty  to  stop  short  before  the  contract  was 
made  complete  in  all  its  parts  by  the  ascertainment  of  the 
quantity  and  price,  through  the  agency  of  him  to  whom  the 
o-aus-ino;  and  valuation  were  referred.     If  I  deliver  a  chattel 

o       o      o 

on  terms  that  the  price  of  it  be  subsequently  fixed  by  the  ven- 
dee and  myself,  I  may  balk  the  contract  by  insisting  on  more 
than  he  will  be  willing  to  give  for  it,  and  thus  regain  the  pos- 
session of  my  property  with  which  I  had  parted  only  condi- 
tionally. But  though  the  price  be  not  settled  by  the  parties, 
yet  if  they  agree  on  a  method  of  settling  it  irrespectively  of 
anything  to  be  done  by  themselves,  it  is  the  same  between  them 
when  subsequently  settled  as  if  the  sum  to  be  given  had  been 
an  original  condition  of  the  bargain  ;  but  if  the  person  to  whom 
the  naming  of  it  was  referred  die  in  the  mean  time,  or  refuse 
to  act,  the  contract  is  at  an  end.  Such  a  sale  is  conditional,  but 
not  executory  like  a  contract  to  sell  at  a  day  to  eome,-which  is 
complete  in  itself,  though  some  act  remain  to  be  done  in  pur- 
suance of  it :  on  the  contrary,  it  is  a  contract,  which,  being 
imperfect  in  itself  as  regards  one  of  its  terms,  is  to  take  efiect 
only  when  the  deficiency  is  supplied  by  the  performance  of  a 


IN    PERSONALTY — SALES.  229 

condition  preoeclcnt,tlie  prevention  of  which  by  an  act  of  Provi- 
dence  or  the  obstinacy  of  the  agent  defeats  the  sale  entirely. 
Nor  does  the  property  pass  by  it,  in  the  first  instance  ;  for  the 
sale,  being  on  a  condition  precedent,  does  not  allow  the  title  to 
vest  before  the  condition  has  been  j)erfornied,  and  tlierefore  if 
the  vendor  sell  the  thing  again  in  the  mean  time,  the  second 
purchaser  will  take  it  clear  of  dispute,  though  the  vendor  will 
be  answerable  in  damages  when  tiie  price  is  named.  All  this 
is  text  law,  and  so  well  understood,  both  by  civilians  and  com- 
mon law  jurists,  that  no  more  is  necessary  than  to  refer  to  Ross 
on  Vendors,  p.  GO,  where  the  authorities  for  it  may  be  con- 
sulted. But  here  the  rum  and  molasses  were  to  be  gauged, 
and  the  price  fixed  at  the  purcliaser's  warehouse;  an  act  that 
was  prevented  by  the  vendor's  retention  of  the  property  in  his 
actual  custody.  There  is  no  precedent  in  the  books  for  such 
a  case  ;  and  it  is  not  easy  to  determine  it  satisfactorily  on  prin- 
ciple. The  difficulty  is  to  comprehend  why  such  an  authority, 
like  a  submission  to  an  arbitrator,  or  a  letter  of  attorney,  may 
not  be  revoked  before  it  has  been  executed.  It  is  settled,  how- 
ever, that  a  power  coupled  with  an  interest  in  the  execution  of 
it,  is  irrevocable  ;  as  in  AValsh  v.  Whitcomb,  3  Esp.  Ca.  565. 
In  Bromley  v.  Holland,  7  Vez.  28,  it  was  said  by  Lord  Eldon, 
that  he  would  not  permit  a  power  of  attorney  given  for  a  valu- 
able consideration  to  be  revoked  ;  and  the  principle  seems  ap- 
plicable to  every  case  where  the  power  is  necessary  to  efl;ectuate 
a  security.  "Was  the  power  given  for  that  purpose  in  this  in- 
stance ?  It  was  given  to  efi'ectnate  a  sale  in  discharge  of  a 
.debt.  If  the  notes  had  been  actually  delivered  up,  the  con- 
tract would  indisputably  have  been  executed  on  the  part  of  the 
vendees;  but  independent  of  that,  the  debt, of  which  the  notes 
were  only  the  evidences,  had  U'cn  taken  as  the  consideration 
of  the  purchase,  and  the  sale  may  still  be  said  to  have  been  ex- 
ecuted so  far  as  regards  tender  of  those  evidences  and  payment 
of  the  purchase-money.  In  addition  to  this,  the  vendees  had 
been  lulled  into  a  false  security  by  the  arrangement,  at  a  time 
when  a  vigilant  use  of  every  instant  in  seeking  other  security 
was  of  peculiar  value  to  them  ;  and  to  sufier  the  vendor  to 
rescind  the  contract  by  a  trick,  when  the  time  for  action  had 
gone  by,  would  be  to  sanction  a  fraud.  Still  it  may  be  askeil. 
16 


230  ILLUSTRATIVE    CASES 

how  is  it  to  go  into  effect  before  performance  of  the  act  which 
was  a  condition  precedent  to  it  ?  Simply  by  taking  prevention 
for  performance,  as  is  often  done  in  regard  to  dependent  cove- 
nants, and  directing  the  jury  to  allow  the  vendor  a  reasonable 
price  for  the  articles  in  their  estimate  of  the  damages.  By 
this  means,  the  bargain  may  be  carried  into  effect ;  and  if  the 
vendor  should  be  deprived  by  it  of  the  benefit  of  Mr.  Stevens' 
judgment,  he  will  have  himself  to  blame  for  it. 
Judgment  reversed,  and  iwocedendo  awarded. 


H. 

Withdrawal  of  proposition  submitted  to  referee. 

HuMASTON  V.  Telegraph  Co. 

Supreme  Court  of  the  United  States,  1873. 
20  Wall.  20. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  Court. 

Whether  or  not  the  Court  erred  in  its  charge,  and  in  the 
exclusion  of  the  evidence  excluded,  depends  on  the  proper 
interpretation  of  the  contract  and  the  rule  of  damages  which 
shall  be  applied  in  this  action  to  the  breach  of  it. 

It  is  insisted  by  the  plaintiff  that  the  defendant  promised  to 
pay  him  for  his  invention  four  hundred  shares  in  addition  to 
the  one  hundred  shares  paid  on  the  delivery  of  the  title,  unless 
the  arbitrators  should  relieve  the  company  by  fixing  some  less 
amount,  and  a  great  deal  of  learning  touching  the  doctrine  of 
conditions  subsequent  and  precedent  has  been  invoked  in  sup- 
port of  this  position.  But  this  doctrine  has  no  application 
here,  for,  manifestly,  this  is  not  an  undertaking  to  which  a 
condition  subsequent  could  be  attached.  It  is  easy  to  deter- 
mine why  this  contract  was  made,  the  nature  of  it,  and  the 
acts  to  be  performed  by  the  contracting  parties.  The  American 
Telegraph  Company  were  engaged  in  carrying  on  the.  telegraph 
business  in  some  portions  of  the  country,  and  naturally  desirous 
of  appropriating  to  itself  any  new  invention  which  would 
facilitate  the  transmission  of  telegraphic  messages.     Humaston 


IN    PERSONALTY — SALES.  231 

claimed  that  his  system  just  patented  would  do  five  times  as 
much  business  on  one  wire  as  the  ordinary  systems  then  in  use. 
If  it  could  do  this  with  equal  accuracy  and  reliability  and  at 
no  greater  cost,  the  value  of  it  could  be  hardly  overestimated  ; 
but  there  had  been  no  experiments  to  test  the  question  of 
whether  or  not  it  was  capable  of  doing  these  things.  It  might 
do  the  work  claimed  for  it,  and  yet  be  so  unreliable,  or  the 
expense  of  working  and  using  it  so  much  greater  than  the 
expense  of  working  and  using  the  inventions  then  open  to  the 
public  or  used  by  the  company,  that  its  purchase  would  bo 
dear  at  any  price.  The  company,  desirous  of  possessing  every- 
thing new  and  useful  in  the  line  of  their  business,  were  willing 
to  risk  something  in  the  acquisition  of  these  inventions,  but 
unwilling  to  pay  the  estimate  of  value  which  Ilumaston  put 
upon  them  without  trial  of  their  utility.  This  estimate  was 
$50,000,  as  the  proof  on  the  trial  was  that  the  stock  of  the 
company  stood  at  par  in  the  market  at  the  date  of  the  contract. 
Tiie  company  sai(l  to  Ilumaston,  We  will  take  your  patents, 
whether  valid  or  not.  and  pay  you  $5000  for  them  if  you  and 
Letferts  stipulate  not  to  comjiotc  with  us  for  a  period  of  ten 
years  ;  and  if  they  are  valid,  whether  useiul  or  not,  the  compen- 
sation shall  be  increased  to  $10,000.  But  we  cainiot  promise 
additional  compensation  unless,  after  proper  experiment,  your 
system  shall  be  proved  to  be  worth  more.  It  may  be  that  your 
claim  of  rafud  performance  can  be  sustained,  and  3'et  the  system 
owing  to  its  greater  cost  than  those  now  in  use,  or  some  other 
controlling  practical  consideration,  be  of  comparatively  little 
value  to  us.  This  can  only  be  determined  after  trial,  by  some 
impartial  tribunal.  We  are  willing  that  this  tribunal  shall  be 
referees  mutually  selected,  to  whom  shall  be  submitted  the 
question  of  whether  we  shall  pay  anything  more  than  the 
$10,000  already  jtaid,  after  the  merits  of  your  system  have 
beeti  tested  by  them  and  its  capal)iiity  and  value  established. 
They  may  reach  the  conclusion  that  you  are  sufficiently  com- 
pensated already,  and  if  they  do,  their  award  must  be  accepted 
as  a  final  settlement  of  the  matters  of  dilVcrence  between  us. 
If  they  reach  a  contrary  conclusion,  they  must  fix  the  amount 
of  consideration  which  we  are  to  pay  in  addition  to  what  you 


232  ILLUSTRATIVE   CASES 

have  already  received  ;  but  this  must  be  within  the  limit  of 
four  hundred  shares  of  stock,  equivalent  to  $10,000. 

This  is  a  fair  analysis  of  the  provisions  of  the  contract  and 
of  the  considerations  on  which  it  was  based.  Instead  of  it 
binding  the  company  to  pay  four  hundred  shares,  unless  a  less 
number  was  fixed  by  the  arbitrators,  it  left  them  to  say  whether 
Humaston  was  entitled  to  any  more  than  he  had  already  got, 
and,  if  so,  how  much?  There  was  no  concession  by  the  com- 
pany that  the  inventions  were  worth  any  more  to  it  than  the 
hundred  shares.  It  might  turn  out  on  the  trial  that  the  price 
already  paid  was  excessive,  or,  on  the  contrary,  that  it  was  not 
sufiiciently  remunerative.  This  point  of  value  the  triers  were 
to  determine,  and  if  determined  favorably  to  the  plaintiff,  he 
would  have  a  cause  of  action  against  the  defendant.  Until 
this  determination,  if  there  had  been  no  interruption  to  the 
arbitration,  no  cause  of  action  could  arise.  It  was  a  reasonable 
provision  that  the  value  of  these  inventions  should  be  sub- 
mitted to  the  arbitration  of  practical  business  men,  and  if 
Humaston,  instead  of  the  company,  had  refused  to  proceed 
with  the  arbitration,  he  could  not  resort  to  an  action,  for  thte 
defendant  would  not  have  been  in  default,  and,  therefore,  not 
liable  to  suit:  Delaware  &  Hudson  Canal  Co.  v.  The  Pennsyl- 
vania Coal  Co.,  50  N.  Y.  250.  But  the  defendant  broke 
the  agreement  and  revoked  the  submission,  and  Humaston 
asks  that  in  consequence  of  this  wrongful  action  of  the  defen- 
dant his  rights  may  be  determined  by  the  Court  and  jury, 
instead  of  by  arbitration. 

It  becomes,  therefore,  important  to  determine  what  is  the 
measure  of  liability  for  the  breach  of  contract  by  the  defendant. 
If  we  are  correct  in  our  interpretation  of  the  contract,  this 
action  cannot  be  supported  as  an  action  seeking  damages  for 
breach  of  contract  to  deliver  stock,  for  there  was  no  engage- 
ment to  deliver  any,  except  on  a  condition  which  has  not 
happened,  and  there  is  no  proof  that  the  arbitrators  would 
have  found  that  Humaston  was  entitled  to  receive  more  stock 
than  he  had  already  obtained. 

The  action  can  be  supported  for  the  value  of  the  property, 
and  this  was  the  proper  subject  of  inquiry  at  the  trial.  The 
company  covenanted  to  pay  this  value,  to  be  ascertained  in  a 


IN    PERSONALTY — SALES.  233 

particular  mode,  and  as  they  have  prevented  tliis  mode  being 
adojtted,  they  cannot  take  advantage  of  their  own  wrong  and 
deprive  the  plaintitt"  of  the  opportunity  of  showing  to  the 
Court  and  jury  what  it  is.  In  lieu  of  the  award  of  the  ail»i- 
trators  the  verdict  of  the  jury  can  be  asked  by  the  plaintilf  to 
determine  it.  The  ascertainment  of  this  value  was  the  essence 
of  the  contract,  the  thing  on  which  the  submission  was  based, 
and  the  revocation  of  the  submission  leaves  the  jury  to  settle 
it.  Benjamin,  in  his  Treatise  on  Sales,  says,  if  the  perfoini- 
ance  of  the  condition  for  a  valuation  be  rendered  impossible 
by  the  act  of  the  vendee,  the  price  of  the  thing  sold  must  be 
fixed  by  the  jury  on  a  quantum  valebat^  as  in  Clarke  v.  AVcst- 
rope,  where  the  out-going  tenant  sold  the  straw  on  a  farm  to 
the  incomer,  at  a  valuation  to  be  made  by  two  indifferent 
persoiis,  but,  pending  the  valuation,  the  buyer  consumed  the 
straw.  And  the  doctrine  of  the  text  is  sustained  by  adjudgetl 
cases  in  this  country  and  England. 

Nothing  is,  therefore,  due  on  this  contract,  unless  the  Court 
and  jury,  sitting  in  the  place  of  the  arbitrators,  shall  decide 
that  the  plaintift'  is  entitled  to  recover  for  the  sale  of  his 
inventions  more  than  he  has  already  received.  The  case  was 
tried  on  this  theory,  and  the  Court  charged  the  jur}'  that  the 
value  of  a  specified  amount  of  stock  was  not  the  legal  measure 
of  the  plaintiff's  damages,  but  that  he  was  entitled  to  recover 
the  excess  (if  any  there  was)  which  the  value  of  what  he  sold 
and  transferred  to  the  company,  enhanced  by  the  agreement  of 
the  plaintiff'  and  Lefferts  not  to  enter  into  competition  with 
the  company,  as  stipulated  in  the  contract,  had,  when  sold  and 
delivered,  over  the  amount  which  he  had  already  received; 
and  this  the  parties  agreed  was  one  hundred  shares  of  the 
defejidant's  stock,  of  the  aggregate  value  of  $10,000,  with 
interest  on  such  excess  from  the  date  of  the  revocation  of  the 
powers  of  the  arbiters.  This  charge  is  in  conformity  with  the 
views  we  have  expressed  of  the  obligations  of  this  contract, 
and  of  the  rule  of  damages  applicable  to  the  breach  of  it. 

It  is  urged,  however,  that  the  Court  erred  in  excluding  tes- 
timony of  the  value  of  the  defendant's  stock  both  when  they 
sold  out  to  the  Western  Union  Company,  and  when  the  revocar 
tion  occurred. 


234  ILLUSTRATIVE    CASES 

It  is  not  perceived  how  the  sale  to  the  Western  Union  Com- 
pany changed  the  rights  of  the  parties,  for  there  is  nothing  to 
show  that  it  hindered  the  defendants  from  acquiring  in  the 
market  at  any  time  a  sufficient  number  of  shares  of  its  stock 
to  comply  with  the  award  which  it  was  expected  the  arbi- 
trators would  be  suflered  to  make  long  after  this  sale  took 
place. 

If  there  had  been  an  agreement  to  deliver  a  certain  c|uantity 
of  stock,  and  an  action  had  been  brought  for  the  conversion  of 
it,  on  the  ground  that  the  defendant  by  the  sale  to  another 
company  had  put  it  out  of  its  power  to  comply  with  the  terms 
of  its  agreement,  evidence  of  the  value  of  the  stock  at  the 
time  the  sale  occurred  would  be  competent.  And  so  would 
evidence  of  its  value  at  the  date  of  the  revocation,  if  the  plain- 
tiff was  in  a  position  to  support  an  action  I'or  damages  for 
breach  of  contract  to  deliver  stock.  But  as  he  is  limited  in 
his  recovery  to  the  value  of  his  inventions  when  sold  and 
delivered,  evidence  of  the  value  of  shares  of  stock  at  all  is 
only  proper  as  tending  to  show  the  estimate  put  upon  the 
property  by  the  parties  at  the  time  they  made  their  bargain. 
And  as  the  value  of  the  stock  in  1861,  when  the  contract  was 
concluded,  was  directly  shown,  its  value  at  any  other  time 
became  unimportant.  The  Circuit  Court  proceeded  on  the 
theory,  and  we  think  correctly,  thiit  the  defendant  intended  to 
give  for  and  considered  the  plaintiff's  property"  worth  (if  it 
performed  certain  conditions)  the  cash  equivalent  of  five  hun- 
dred shares  of  stock.  This  was  $50,000,  which  the  plaintiff 
must  also  have  adopted  as  his  estimate  of  the  value  of  the 
property  Avhen  he  sold  it,  as  he  oflered  evidence  tending  to 
show  that  it  was  worth  that  sum,  and  claimed  that  the  evi- 
dence proved  the  fact.  The  conflict  of  testimony  on  the  worth 
of  the  Ilumaston  inventions  was  very  great,  for  the  defendant 
also  introduced  evidence  tending  to  prove,  and  claimed  it  was 
proved,  that  these  inventions  were  of  no  value,  or,  if  any,  no 
more  than  the  amount  already  paid  for  them. 

In  this  condition  of  the  evidence  it  was  a  difficult  matter  for 
the  jury  to  settle  the  issue  submitted  to  them,  l)nt  as  they  were 
able  to  do  it  with  the  aid  of  the  Court  and  eminent  counsel, 


IN    PERSONALTY — SALES.  235 

after  a  lengthy  trial,  by  finding  a  considerable  verdict  for  the 
plaintiff,  it  would  seem  that  he  ought  to  be  satisfied  with  it. 

At  any  rate  there  is  no  error  in  the  record,  and  the  judgmeut 
must  be 

Affirmed. 


I. 

Price  implied. 

Taft  v.  Travis. 

Supreme  Court  of  Massachusetts,  1883. 
loG  Mass.  95. 

C.  Allen,  J.  There  was  some  evidence  tending  to  show  that 
the  plaintiff,  being  the  owner  of  the  engine,  met  the  defendant 
at  a  time  when  the  latter  had  it  in  his  possession  either  right- 
fully or  wrongfully,  and  gave  notice  of  his  ownership,  and  that 
he,  the  pluintifi',  did  not  wish  the  defendant  to  pay  any  one  for  it 
but  himself;  that  the  defendant  did  not  dissent  therefrom,  and 
said  he  had  paid  a  few  dollars  for  setting  it  up,  but  would  pay 
no  more  till  he  saw  the  plaintifi";  that  the  engine  accordingly 
remained  in  the  possession  of  the  defendant,  with  no  offer  on 
his  part  to  give  it  up ;  and  that  nothing  was  thereai'ter  done 
or  said  by  him  to  modify  the  inferences  which  might  bo  drawn 
from  what  had  gone  before.  This,  if  believed  by  the  jury  to 
be  the  true  state  of  the  case,  would  warrant  them  in  finding  that 
both  parties  assented  to  treating  the  engine  as  then  sold  by  the 
plaintifi*  to  the  defendant,  for  a  reasonable  price,  not  fixed.  If 
the  defendant  did  not  wish  to  keep  it  on  these  terms,  he  might 
have  said  so.  An  assent  to  a  sale  need  not  be  in  express 
terms ;  and  it  is  not  necessary  that  a  price  be  fixed  by  the  par- 
ties. If  no  price  is  fixed,  the  law  implies  that  it  is  what  the 
article  is  reasonably  worth:  Acebal  v.  Levy,  10  Bing.  376; 
Iloadly  V.  M'Laine,  10  Bing.  482  ;  Valpy  v.  Gibson, 4  C.  B.  837  ; 
Benjamin  on  Sales  (4th  Am.  ed.  by  Corbin),  52, 102,  270-272. 

As  to  the  amount  of  damages,  the  verdict  may  stand,  upon 
the  ground  that  the  plaintifi"  repudiated  whatlluntoon  had  done, 


236  ILLUSTRATIVE   CASES 

and  that  the  transaction  between  the  plaintifl'and  the  defendant 
alone  constituted  the  sale. 
Exceptions  overruled. 

DAKLINGTON,  P.  P.  77  ;  McEwen  v.  Morey,  60  111.  32  ; 

1  Benjamin  on  Sales,  §  102  ;  Feutou  v.  Braden,  2  Cranch,  C. 

Cunningham  v.  Ashbrook,  20  Mo.  C.  550  ; 

553  ;  Acebal  v.  Levy,  10  Bing.  382  ;  25 

Jenkins   v.   Richardson,   6  J.   J.  Eng.  Com.  Law  ; 

Marsh.  442  ;  Hoodley   v.   McLaine,    10  Bing. 

Esterlin  v.  Rylander,  59  Ga.  292 ;  487  ;  25  Eng.  Com.  Law. 

James  v.  Muir,  33  Mich.  223  ; 


J. 

No    sale  without   a   fixed   price. 

WlTTKOWSKY  V.   WaSSON. 

Supreme  Court  of  North  Carolina,  1874. 
71  N.  C.  451. 

Rodman,  J.  As  the  Judge  instructed  the  jury  to  find  a  ver 
diet  for  the  defendant,  he  must  be  taken  to  have  decided  that- 
there  was  no  evidence  of  a  sale  of  the  goods  to  the  plaintiff. 
Where  there  is  any  evidence  to  support  a  plaintiff's  claim,  it 
is  the  duty  of  the  Judge  to  submit  the  question  to  a  jury,  who 
are  the  exclusive  judges  of  its  weight.  This  doctrine  must 
have  been  a  part  of  the  law  from  the  earliest  times  at  which 
the  respective  functions  of  the  Judge  and  jury  were  discrimi- 
nated. The  earliest  distinct  expression  of  it  that  I  know  of 
was  by  Buller,  J.,  in  Company  of  Carpenters,  etc.,  1  Douw. 
375.  "  Where  there  be  any  evidence  is  a  question  for  the 
Judge.     Whether  sufficient  evidence  is  for  the  jury." 

Since  then  it  has  been  repeated  irniumerable  times.  Of 
course,  after  a  while  it  became  a  question  as  to  what  was  the 
meaning  of  the  phrase,  "«??y  evidence."  Did  it  mean  the 
slightest  scintilla  of  evidence,  or  such  only  as  that  from  which 
a  jury  might  reasonably  infer  the  existence  of  the  alleged  fact. 
The  latter  view  has  been  adopted  in  this  State  and  in  England, 
and,  so  far  as  my  researches  have  extended,  in  other  States 


IN    PERSONALTY — SALES.  237 

generally.  This  was  the  view  taken  by  this  Court  in  State  v. 
Vinson,  G3  N.  C.  Rep.  335,  upon  the  authorities  there  cited. 
In  addition  to  those  are  the  following  cases  in  this  State,  which 
speak  a  uniform  language:  Jordan  r.  Lassiter,  6  Jones,  130; 
State  V.  Revels,  Busb.  200;  Sutton  v.  Madre,  2  Jones,  320  ;  Cobb 
V.  Fogleman,  1  Ired.  440. 

There  is  a  recent  case  in  the  English  Court  of  Exchequer 
Chamber,  which  puts  the  doctrine  so  clearly  as  to  excuse  u 
quotation.  The  question  in  that  case  was  whether  certain 
articles'  which  had  been  sold  to  an  infant  were  necessaries. 
WiLLES,  J.,  says:  "There  is  in  every  case  a  preliminary  ques- 
tion which  is  one  of  law,  viz. :  whether  there  is  any  evidence 
on  which  the  jury  could  properly  find  the  question  for  the 
party  on  whom  the  onus  of  proof  lies.  If  there  is  not,  the 
Judge  ought  to  withdraw  the  question  from  the  jury  and 
direct  a  nonsuit  if  the  onus  is  on  the  plaintiti',  or  direct  a  ver- 
dict for  the  plaintiti:'  if  the  onus  is  on  the  defendant.  It  was 
formerly  considered  necessary  m  all  cases  to  leave  the  question 
to  the  jury  if  there  was  any  evidence,  even  a  scintilla,  in  sup- 
port of  the  case ;  but  it  is  now  settled  that  the  question  for  the 
Judge  (subject,  of  course,  to  review)  is,  as  stated  by  Maule,  J., 
in  Jewell  v.  Parr,  13  C.  B.  916  (76  E.  C.  L.  R.),  not  whether 
there  is  literally  no  evidence,  but  whether  there  is  none  that 
ought  reasonably  to  satisfy  the  jury  that  the  fact  sought  to  be 
proved  is  established.  In  Toomey  v.  London  and  Brighton 
R.  W.  Co.,  3  C.  B.  K  S.  150  (91  E.  C.  L.  R.),  Williams,  J., 
enunciates  the  same  idea  thus:  'It  is  not  enough  to  say  that 
there  was  some  evidence— a  scintilla  of  evidence  clearly  would 
not  justify  the  Judge  in  leaving  the  case  to  the  jury.  There 
must  be  evidence  on  which  they  might  reasonably  and  pro- 
perly conclude  that  there  was  negligence' — the  fact  in  that 
case  to  be  established.  And  in  Wheelton  v.  IIardisty,8  E.  &  B. 
262  (92  E.  C.  L.  R.),  in  the  conpidered  judgment  of  the  majority 
of  the  Court,  it  is  said:  'The  question  is,  whether  the  pnn.f 
was  such  that  the  jury  would  reasonably  come  to  the  conclu- 
sion that  the  issue  was  proved?'  This,  'they  say,'  is  now 
settled  to  be  the  real  question  in  such  cases  by  the  decisions  in 
the  Exchequer  Chamber,  which  have,  in  our  opinion,  so  j^rop- 
erly  put  an  end  to  what  had  been  treated  as  the  rule,  that  a 


238  ILLUSTRATIVE    CASES 

case  must  go  to  the  jury  if  there  were  what  had  heen  termed 
a  scintilla  of  evidence:"  Ryder  v.  Wombwell,  (1868)  L.  R.  4 
Exch.  22.  By  thus  quoting  from  recent  English  cases  we  do 
not  mean  to  extend  or  alter  any  rule  of  practice  or  evidence 
heretofore  recognized  in  this  State.  The  great  importance  of 
this  understanding  of  the  phrase,  "  any  evidence,"  will  be  seen 
by  considering  it  as  it  may  be  applied  in  criminal  actions. 

The  question  then  is,  was  there  any  evidence  in  this  case  of 
a  sale  of  the  goods  in  question  to  the  plaintift's.  A  sale  is  de- 
fined by  Benjamin  as  "  a  transfer  of  the  absolute  or  general 
property  in  a  thing  for  a  price  in  money.  To  the  completion 
of  this  contract,  as  of  all  others,  there  must  be  the  mutual 
assent  of  the  parties  to  its  terms.  Such  mutual  assent  cannot 
exist  unless  the  terms  are  definite.  The  thing  sold  must  be 
ascertained.  Until  the  specific  thing  is  agreed  on,  the  agree- 
ment can  only  be  executory."  Benjamin  on  Sales,  227-28. 

And  for  a  like  reason,  the  price  to  be  paid  must  also  be  cer- 
tain, or  some  guide  must  be  agreed  on  by  which  it  can  be  found 
with  certainty.  There  may  be  a  sale  for  a  reasonable  price,  in 
which  case,  if  the  party  afterwards  differ,  the  price  must  be 
made  certain  by  the  verdict  of  a  jury.  Or  there  may  be  a  sale 
at  a  price  to  be  afterwards  fixed  by  valuers.  In  such  case,  if 
the  valuers  refuse  to  fix  the  price,  the  sale  is  considered  incom- 
plete or  else  as  rescinded  by  the  refusal.  If,  indeed,  the  thing 
sold  has  been  delivered  to  the  vendee  and  consumed,  so  that 
the  parties  cannot  be  put  in  statu  quo,  the  vendee  is  liable  for 
a  reasonable  price :  Benjamin  on  Sales,  69 ;  Clarke  v.  Wes- 
troppe,  18  C.  B.  765.  But  there  cannot  be  an  executed  sale  so 
as  to  pass  the  property  where  the  price  is  to  be  fixed  by  agree- 
ment between  the  parties  afterwards,  and  the  parties  do  not 
afterwards  agree.  One  element  of  a  sale  is  wanting,  just  as  a 
different  element  would  be  if  the  thing  were  not  ascertained. 
If  in  such  case  the  thing  was  actually  delivered  and  consumed, 
the  vendee  would  be  liable,  not  upon  the  special  im{)erfect  con- 
tract, but  on  an  implied  contract  to  pay  a  reasonable  j:)rice.  In 
Devane  v.  Fennell,  2  Ired.  36,  it  is  said  that  if  upon  a  contract 
for  the  sale  of  goods  anything  remains  to  be  done  by  the  vendor 
to  ascertain  the  price,  etc.,  the  sale  is  incomplete,  and  if  the 


IN    PERSONALTY — SALliS.  239 

actual  possession  lias  been  (k-livereJ   to  the  voiulee,  it   is  still 
constructively  in  the  vendor. 

To  apply  these  princij)les  to  the  evidence  for  tiie  jtlaintiil'  in 
the  present  case:  The  i)]aintiits  being  creditors  of  Wycoif  i^ 
Shepperd,  sued  out  an  atlachment  against  tliein,  and  sent  a 
deputy  sheriff  and  another  person  as  their  agent,  to  the  store 
of  Wycoft'  &  Shepperd.  The  attachment  was  not  levied  and 
no  claim  is  set  up  on  that  account.  The  agent  proposed  to 
take  the  goods  in  question,  or  as  much  of  them  as  might  be 
required  for  the  i)urpose,  in  payment  of  the  plaintiffs'  debt, 
but  he  and  Shejiperd  did  not  agree  upon  the  price.  Thereupon, 
as  the  case  states  the  testimony  of  the  agent,  who  was  a  wit- 
ness for  plaintifi's,  "  the  agent  and  Shepperd  agreed  to  box  up 
all  the  goods  without  an  inventorv,  haul  them  to  Troutman's 
depot  on  the  A.,  T.  &  0.  R.  E.  next  morning,  which  was 
Thursday ;  that  on  the  next  jMonday  Shepperd  was  to  go  down 
with  the  goods  to  Charlotte,  and  agree  on  the  price  with 
Wittowsky,  and  if  they  agreed,  the  debt  to  plaintiffs  was  first 
to  be  paid  out  of  the  price,  and  the  remainder  paid  over  to 
Shepperd,"  etc. 

The  goods  were  accordingly  hauled  to  the  depot,  and  the 
agent  of  the  railroad  company  was  told  that  they  were  to  go 
to  plaintiffs  at  Charlotte,  and  that  Shepperd  was  to  go  with 
them.  The  plaintiffs'  ngcnt,  with  the  consent  of  Shepperd, 
sold  some  guano  and  a  set  of  counter  scales  wljich  were  at  the 
store,  and  before  the  goods  were  carried  to  the  depot,  and  re- 
ceived the  price.  The  goods  were  not  sent  to  Charlotte,  but 
remained  at  the  depot;  no  [iricc  was  afterwards  agreed  on  be- 
tween plaintiffs  and  Shci)perd,  and  on  Monday  night  they  were 
levied  on  by  the  defendant  as  sheriff. 

In  all  the  transaction  we  think  there  is  no  evidence  of  an 
executed  sale;  nothing  from  which  it  could  be  reasonably  or 
fairly  inferred  that  it  was  the  intent  of  the  parties  to  it  to  trans- 
fer the  absolute  property  in  the  goods  to  the  plaintiffs. 

There  may  be  a  doubt  as  to  who  had  actual  possession  and 
control  of  the  goods  while  at  the  depot,  whether  the  plaintiffs 
or  Shepperd.  That  question  is  not  assumed  either  way,  and 
no  stress  is  put  on  it.  Jiut  if  the  goods  had  happened  to  have 
been  burned  at  the  depot,  and  Wycoff  &  Shepperd  liad  sued 


240 


ILLUSTRATIVE  CASES 


the  plaintiffs  for  the  price  as  on  an  executed  eale,  hy  what  rule 
would  the  price  have  been  ascertained  ?     Not  by  any  furnished 
by  tiie  contract  between  the  parties,  which  shows  that  the  con- 
tract was  incomplete. 
Judsnient  affirmed. 


1  Benjamin  on  Sales,  ?  85  ; 

2  Sch.  on  Per.  Troperty,  ??  213, 
215  ■ 

Fuller  1-.  Bean,  34  N.  H.  290  ; 

Brown  v.  Bellows,  4  Pick.  179  ; 

Devaue  v.  Fennell,  2  Ired.  Law, 
36; 

Ames  V.  Quimby,  96  U.  S.  324  ; 

Vickers  v.  Viekers,  L.  R.,  4 
Equity  Cases,  529. 

Sale  discussed,  see — 

Eldridge  v.  Kuehl,  27  Iowa,  173  ; 

Williamson  v.  Berry,  8  How.  544. 


Sale  as  used  in  indictments,  see — 

Stevenson  v.  The  State,  65  Ind. 
409; 

Massey  v.  State,  74  Ind.  308  ; 

Porter  et  al.  v.  Talcott  et  al,  1 
Cowen,  359  ; 

Herrick  v.  Carter,  56  Barb.  41. 

Inadequacy  of  price — 
Erwin  v.   Parham,   12  Howard, 
197; 

Howard  v.  Edgell,  17  Yt.  9  ; 
Lee  V.  Kirby,  104  Mass.  428. 


IN   PERSONALTY — SALES.  241 


III. 

CLASSES   OF  CONTRACTS   RESPECTING  SALES. 

A. 

Executed. 

Elliott  et  al.  v.  Stoddard. 

Supreme  Judicial  Court  of  Massachusetts,  1867. 

98  Mass.  145. 

Chapman,  J.  Both  parties  claim  title  to  the  machinery  in 
controversy  under  Enoch  Wait.  On  the  10th  of  October,  1864, 
he  made  a  bill  of  sale  of  it  to  the  plaintifis  and  gave  them  pos- 
Ression.  It  was  then  in  a  factory  which  belonged  to  Willard 
Hayden  k  Co.,  and  the  plaintifis  did  not  remove  it  till  the  fol- 
lowing December. 

The  defendant  is  a  deputy  sheriiF,  and  subsequently  attached 
the  niachinery  as  the  property  of  Wait  on  a  writ  in  favor  of 
Hayden  &  Co.  against  him.  His  answer  avers  this  fact;  denies 
the  plaintifis'  title,  and  says  the  sale  to  them  was  colorable  and 
was  made  to  defraud  the  creditors  of  Wait ;  also  that  Wait  was 
under  a  contract  to  sell  and  convey  the  whole  or  a  part  of  the 
machinery  to  Hayden  k  Co.,  and  that  the  sale  to  the  plaintifis 
was  intended  to  prevent  the  fulfilment  of  this  contract,  and  was 
fraudulent  as  to  Hayden  k  Co. 

The  ruling  of  the  Superior  Court,  that  the  burden  was  not  on 
the  plaintifis  to  prove  that  the  sale  to  them  was  not  made  to 
hitider,  delay,  or  defraud  Wait's  creditors,  was  in  conforinity 
with  an  elementary  rule  of  evidence  too  well  settled  to  be  talleil 
in  question.  Ko  authority  is  cited  to  sustain  the  defendant's 
exceiition  to  the  rulino;.  The  instructions  triven  to  tlie  iiirv  as 
to  the  evidence  on  tiiat  point  were  sufiiciently  favorable  to  the 
defendant. 

The  evidence  ofi'orcd  to  prove  a  contraL-t  bctwct'ii  Wait  and 


242  ILLUSTRATIVE    CASES 

llayden  &  Co.  on  August  25, 18G4,  for  the  sale  of  the  machinery, 
was  properly  excluded,  for  it  was  not  stated  that  Hay  den  &  Co. 
had  actually  purchased  and  paid  for  the  machinery,  nor  was  it 
contended  at  the  argument  that  the  ofter  was  to  be  so  construed. 
The  contract  was  therefore  executory,  and  no  legal  title  to  the 
machinery  passed  by  virtue  of  it  to  Hayden  &  Co.  As  against 
such  a  contract  the  legal  title  would  pass  to  the  plaintifis  by  the 
sale  and  delivery  to  them  ;  and  the  contract,  and  the  election  of 
Hayden  &  Co.  on  the  22d  of  November  to  purchase  the  property 
in  compliance  with  its  terms,  and  the  notice  of  their  election  to 
Wait,  and  any  subsequent  arrangement  with  him  short  of  a  sale 
and  delivery,  would  not  authorize  them  to  contest  the  title  of 
the  plaintitfs  in  this  action. 

The  ruling  was  also  correct  that  the  plaintiffs,  in  proving  the 
sale  of  Wait  to  them,  might  ofier  in  evidence  such  declarations 
of  the  parties  as  accompanied  the  acts,  and  formed  part  of  the 
res  gestcB.  What  particular  declarations  were  oftered  does  not 
appear.  No  question  is  made  except  as  to  the  general  principle, 
and  it  is  too  well  established  to  admit  of  doubt. 

Exceptions  overruled. 


B. 

Executory. 

Bradshaw  v.  Warner  et  al. 

Supreme  Court  of  Indiana,  1876. 

54  Ind.  58. 

WoRDEN,  C.  J.  This  was  an  action  of  replevin  by  the  ap- 
pellees against  the  appellant,  for  a  safe.  Trial  by  Court,  special 
finding  of  facts,  conclusions  of  law  thereon  stated,  and  judg- 
ment for  plaintift's. 

The  defendant  appeals,  assigning  the  single  error  that  the 
Court  erred  in  the  conclusions  of  law. 

The  following  are  the  facts  found  by  the  Court,  viz. : — 

"  In  the  spring  of  1873,  an  agent  of  the  plaintiffs  called  on 
A.   G.  Wolf  &  Co.,  merchants,  at  their  place  of  business  in 


IN   PERSONALTY — SALES.  243 

Delphi,  Indiana.  The  result  of  that  call  Avas  an  order  to  the 
plaintitl's  for  a  safe.  This  order  is  in  writing,  and  is  in  the  fol- 
ing  words  and  figures,  viz. : — 

'"Delphi,  Indiana,  May  15,  1873. 

"'Messrs.  Warner  &  Carey:  Please  send  us,  as  soon  as  con- 
venient, one  Diebold  &  Kienzle's,  No.  6,  fire  S.  D.  proof  safe  ; 
size  as  per  illustrated  catalogue;  ship  via  Cincinnati,  freight, 
to  Delphi,  Indiana,  from  Canton,  Oliio.  Terms,  on  board  cars 
in  Canton,  Ohio,  with  note,  one  hundred  and  sixty-five  dollars, 
one-fourth  in  four,  one-fourth  in  eight,  one-fourth  in  twelve, 
one-fourth  in  sixteen  months  from  date  of  invoice,  without 
interest. 

"  '  Remarks  :  Xame  on  outside  of  safe,  "  A.  G.  "VV. ;"  on  in- 
side, "  Drawer." 

"  If  note  is  not  forwarded  to  you  at  the  expiration  of  twenty- 
five  days  from  date  of  invoice,  the  account  shall  become  due  at 
the  expiration  of  thirty  days  from  date  of  bill,  and  agree  to 
accept  and  pay  draft  of  amount  mentioned  below,  and  are  not 
to  countermand  this  order.  It  is  agreed  that  the  title  to  said 
safe  not  pass  until  notes  are  paid,  or  safe  paid  for  in  cash,  but 
shall  remain  your  property  until  that  time.  Xct  price,  one 
hundred  and  sixty-five  dollars. 

" '  Yours,  truly, 

'"A.  G.  WoLFctCo.' 

"This  order  or  letter  was  signed,  executed,  and  delivered  to 
the  plaintifts'  agent  by  said  A,  G.  Wolf  &  Co.,  and  by  him  for- 
warded, in  due  course  of  mail,  to  the  plaintifls  in  Chicago, 
Illinois,  where  it  was  received  on  the  17th  day  of  May,  1873. 

"Some  time  in  the  summer  of  1873  the  plaintifts  duly  exe- 
cuted their  part  of  said  contract,  and  the  safe  ordered  was  re- 
ceived and  accepted  by  said  A.  G.  Wolf  &  Co.,  at  Delphi, 
Indiana. 

"That  before  the  shipment  of  the  safe,  the  plaintiifs  made 
inquiries  about  the  financial  standing  of  A.  G.  Wolf  &  Co. 

"After  the  reception  of  the  safe  by  A.  G.  Wolf  &  Co.,  they 
placed  tlie  same  in,  and  used  the  same  at,  tlieir  place  of  busi- 
ness in  Delphi,  Indiana,  until  May,  187-i. 

"That  said  A.  G.  Wolf  &  Co.  accepted  four  drafts,  drawn  on 


244  ILLUSTRATIVE   CASES 

them  bj  the  plaintiffs,  for  forty-one  dollars  and  twenty-five 
cents  each,  payable  in  four,  eight,  twelve,  and  sixteen  months, 
respectively,  all  bearing  date  July  31,  1873.  That  neither  of 
said  drafts  was  ever  paid.  That  said  A.  G.  Wolf  &  Co.  never 
paid  plaintiffs  in  any  way  for  said  safe. 

"That  at  the  time  the  first  acceptance  became  due,  the  said 
A.  G.  Wolf  &  Co.  were  insolvent,  and  have  so  remained  ever 
since. 

"  That  on  May  15,  1874,  a  constable  of  Deer  Creek  Town- 
ship, Carroll  County,  Indiana,  levied  an  execution,  then  in  his 
hands,  against  said  A.  G.  Wolf  &  Co.,  and  in  favor  of  creditors 
other  than  the  plaintifts,  upon  said  safe,  to  satisfy  said  exe- 
cution. 

"  That  at  and  before  the  time  of  the  levy,  the  said  safe  being 
in  the  possession  of  A.  G.  Wolf  &  Co.,  A.  G.  Wolf  told  the 
said  constable  that  said  safe  was  his  [their]  absolute  property. 

"  That  the  safe  was  advertised  by  the  said  constable  for  sale 
to  satisfy  said  execution,  and  at  the  sale  the  defendant,  Brad- 
shaw,  believing  the  safe  to  belong  to  said  A.  G.  Wolf  &  Co., 
and  being  ignorant  of  the  plaintiti's'  claim,  bid  upon  said  safe, 
and  it  was  struck  oft'  to  him  by  the  constable,  at  and  for  the 
price  of  eighty  dollars,  which  sum  he  then  and  there  paid  to 
the  constable  and  took  possession  of  said  safe. 

"  That  before  the  commencement  of  this  suit,  plaintiffs  de- 
manded of  defendant  a  return  of  the  safe,  which  defendant  re- 
fused and  still  refuses  to  do.  That  said  safe  was  of  the  value 
of  eighty  dollars  at  the  time  of  the  demand." 

The  Court  concluded,  as  matter  of  law  arising  upon  the  facts, 
that  the  plaintiffs  were  entitled  to  recover  the  safe,  and  rendered 
judgment  accordingly. 

The  main  ground  assumed  by  the  appellant  is,  that  as  he  was 
a  purchaser  without  any  notice  of  the  appellees'  claim  to  the 
safe,  and  that  as  A.  G.  Wolf  &  Co.  had  the  indicia  of  owner- 
ship, his  rights  should  be  held  paramount  to  those  of  the 
plaintiffs. 

But  the  title  to  the  property  never  passed  to  A.  G.  Wolf  & 
Co.  at  all.  By  the  express  terms  of  the  contract,  the  title  to 
the  safe  was  not  to  pass  to  Wolf  &  Co.  until  it  was  paid  for, 


IN    PERSONALTY — SALES.  245 

but,  on  tlic  contrary,  it  was  to  rcniaiti  in  the  itlaintifts  until 
that  was  done. 

Ah  the  title  was  not  in  Wolf  &  Co,  at  the  time  of  the  con- 
stable's sale,  no  title  was  acquired  by  the  ap)i)ellant  by  liis  jiur- 
chase,  unless  there  is  something  in  the  case  that  takes  it  out  of 
the  ordinary  rule  that  the  purchaser  of  personal  pru^terty  ac- 
quires no  better  rii^ht  to  it  than  his  vendor  had.  We  see 
nothing  in  the  case  that  takes  it  out  of  the  ordinary  rule.  As 
a  general  rule,  the  purchaser  of  personal  property  on  execution 
acquires  no  better  right  than  the  execution-defendant  had.  The 
appellant  evidently  acquired  no  better  title  than  if  he  had  in 
good  faith  purchased  the  safe  from  Wolf  &  Co.  The  statement 
of  Wolf  to  the  constable,  that  the  safe  was  theirs,  cannot  affect 
the  plaintiffs'  right  to  it.  On  principle  and  authority,  we 
think  the  plaintiffs  were  entitled  to  the  safe,  and,  therefore, 
that  the  Court  did  not  err  in  its  conclusions. 

In  the  case  of  King  r.  Wilkins,  11  Ind.  347,  it  was  said,  in 
speaking  of  a  conditional  sale  like  the  present,  "Against 
creditors  whose  demands  originated  while  the  property  was  in 
possession  of  the  vendee,  so  that  it  might  be  fairly  presumed 
that  a  false  credit  was  given  him,  the  vendor  cannot,  in  our 
oi»inion,  set  up  title." 

We  doubt  the  correctness  of  the  statement,  as  applied  to  a 
case  where  the  title  has  never  passed  from  the  su}>posed  vendor. 
But  if  it  were  a  correct  statement  of  the  law,  it  would  have  no 
application  to  the  case  here,  for  here  it  was  not  found  that  the 
debt  on  which  the  judgment  was  rendered,  and  for  which  the 
safe  was  sold  by  the  constable,  was  contracted  while  the  safe 
was  in  the  possession  of  Wolf  &  Co. 

A  later  case  in  this  Court,  that  of  Thomas  r.  Winters,  12 
Ind.  322,  is  in  point  here.  There,  1'homas  &  Co.  sold  two  steers 
to  Johnson,  to  be  paid  for  in  staves,  and  a  written  agreement, 
signed  by  Johnson,  contained  this  provision  :  "  And  the  said 
Thomases  hold  the  said  steers  as  their  property  until  the  de- 
livery of  said  staves." 

Johnson  took  possession  of  the  steers  and  sold  them,  never 

delivering  the  staves.     In  an  action  of  rei)levin  by  the  Thomases, 

against  the  purchaser,  for  the  steers,  it  was  heUl  that  the  title 

had  not  passed  from  Thomas  k  Co.,  and,  therefore,  that  the  pur- 

17 


246  ILLUSTRATIVE    CASES 

chaser  from  Johnson  acquired  no  title.     The  case  of  Dunbar  v. 
Rawles,  28  Ind.  225,  is  also  in  point. 

We  content  ourselves  with  citing  two  authorities  from  other 
States.  In  Ballard  v.  Burgett,  40  N.  Y.  314,  the  plaintiff  sold 
oxen  to  one  France  for  one  hundred  and  eighty  dollars,  with 
the  agreement  that  the  oxen  were  to  remain  the  property  of  the 
plaintiff  until  paid  for.  France,  never  having  paid  for  the  oxen, 
sold  and  delivered  them  to  the  defendant,  who  had  no  notice  of 
the  plaintiff's  claim.  It  was  held,  upon  an  extensive  examina- 
tion of  the  authorities,  that  the  title  to  the  property  had  not 
passed  from  the  plaintiffs;  that  the  purchaser  from  France  ac- 
quired no  title;  and  that  the  plaintiftVwas  entitled  to  recover 
the  oxen. 

The  case  of  Hirschorn  v.  Canney,  98  Mass.  149,  was  replevin 
for  seventy  thousand  cigars.  The  plaintiffs,  of  New  York,  sold 
the  cigars  to  one  Eaton,  of  Boston,  "  on  the  condition  that  it 
his  references  should  be  satisfactory,  they  would  ship  the  cigars 
to  him,  and  he  should  send  his  notes  in  payment."  The  refer- 
ences being  satisfactory,  the  plaintiffs  shipped  him  the  cigars, 
and  sent  him  by  mail  a  bill  of  lading,  and  a  letter  as  follows, 
viz.:  — 

"  We  have  the  pleasure  to  inclose  bill  of  lading  of  ten  cases 
cigars.     Please  remit  us  your  notes  for  the  amount  of  bill." 

Eaton  received  the  cigars,  and,  soon  afterwards,  sold  them 
in  the  usual  course  of  business  to  the  defendants,  but  he  never 
sent  his  notes  to  the  plaintiffs  in  payment.  It  was  held  tliut 
the  plaintiffs  were  entitled  to  recover  the  cigars ;  that  the  sale 
to  Eaton  was  on  condition  that  he  should  send  them  his  notes 
in  payment;  and  that,  as  he  had  not  performed  the  condition, 
the  title  did  not  vest  in  him,  and  the  defendants  acquired  no 
title  by  their  purchase  from  Eaton. 

The  judgment  below  is  affirmed,  with  costs. 


IN    PERSONALTY — SALES.  247 

c. 

Conditional. 

Minneapolis  Harvester  Works  r.  IIally. 

Supreme  Court  of  Minnesota,  1881. 

27  Minn.  495. 

Berry,  J.     This  action    is  brouglit  upon  the  following  in- 
strmnont : — 
'^  $240.     ■  Belle  Plaine,  Minn.,  October  5,  1878. 

"On  or  before  the  lir.st  day  of  September,  1879,  for  value 
received  in  two  M.  L.  reapers,  I  promise  to  pay  to  the  order 
of  the  Minneapolis  Harvester  Works,  two  hundred  and  forty 
dollars,  at  the  office  of  Minneapolis  Harvester  Works,  in 
Mimieapolis,  Minn.,  with  interest  at  the  rate  of  12  per  cent, 
per  annum  from  date  until  paid  ;  agreed,  that  if  paid  at  ma- 
turity (or  in  thirty  days  thereafter),  then  the  interest  shall  be 
nothing.  And  I  further  agree,  in  consideration  of  the  credit 
herein  given,  that  if  this  note  is  not  paid  when  due,  and  suit 
is  brought  thereon,  I  will  pay  five  dollars  additional  on  the 
amount  then  due  for  attorney's  fees,  and  the  same  may  be 
included  in  the  judgment.  And  I  further  agree  to  pay  all 
other  reasonable  expenses  incurred  in  collecting  this  note. 

"The  express  condition  of  the  sale  and  purchase  of  the 
machine  for  which  this  note  is  given  is  such  that  the  title, 
ownership,  or  right  of  possession  does  not  pass  from  the  said 
Minnea[)olis  Harvester  Works,  until  this  note  and  interest  is 
paid  in  full.  And  the  said  Mimieapolis  Harvester  Works,  or 
tlieir  authorized  agents,  are  hereby  fully  authorized  and  em- 
powered to  proceed  to  collect  the  same  at  any  time  they  may 
reasonably  deem  themselves  insecure,  even  before  the  maturity 
thereof;  and  may  take  possession  of  said  machine,  sell  the 
same,  and  apply  the  proceeds  towards  the  payment  of  this 
note,  after  paying  all  costs  and  necessary  expenses ;  also  this 
note  to  become  due  upon  the  removal  of  its  maker  from  the 
county  wherein  he  now  resides.  This  note  may  be  paid  in 
good  farmers'  notes,  taken  and  indorsed  according  to  contract. 

"  M.  IIally. 

"P.  0.,  Bdlc  Flaine,  Coinifi/  of  Scott,  Slalr  of  Minn. 

"Witness:  T.  B.  iS'ettleton." 


248  ILLUSTRATIVE    CASES 

The  expressed  consideration  of  the  instrument  is  "  value 
received  in  two  M.  L.  reapers."  It  is  expressly  conditioned 
in  the  same  "  that  the  title,  ownership,  or  right  of  possession" 
of  the  machines  "does  not  pass  from  the  said  Minneapolis 
Harvester  Works  until  this  note  and  interest  is  paid  in  full." 
It  appears  from  undisputed  evidence  on  both  sides  that  the 
machines  have  been  taken  from  the  possession  of  the  defen- 
dant by  the  plaintiff,  and  sold.  This  fact  we  understand  to 
be  also  substantially  alleged  in  the  complaint.  The  result  is 
that  there  is  a  total  failure  of  the  consideration  expressed  in 
the  instrument.  The  case  is  one  of  a  conditional  sale;  that 
is  to  say,  of  a  transaction  which  was  to  take  effect  as  a  sale, 
so  as  to  pass  the  title  of  the  reapers,  and  the  right  of  posses- 
sion upon  payment  therefor,  and  not  otherwise.  The  defen- 
dant not  only  never  acquired  any  "  title,  ownership,  or  right 
of  possession  of  the  machines,"  but  he  has  by  the  act  of  the 
plaintiff  been  deprived  of  the  power  of  acquiring  any  by  pay- 
ing the  price  specified  in  the  instrument. 

The  case  is  similar  to  Third  Nat.  Bank  v.  Armstrong,  25 
Minn.  530,  where  it  is  said  that  "  the  promise  of  payment  and 
the  implied  obligation  to  transfer  the  title  were  mutual,  and  as 
each  was  the  sole  consideration  for  the  other,  and  both  were  to 
be  performed  at  the  same  time,  they  were  concurrent  conditions 
of  the  same  agreement,  in  the  nature  of  mutual  conditions  pre- 
cedent, so  that  inability  or  refusal  to  perform  the  one  would 
excuse  performance  as  to  the  other."  Whatever  remedy, 
therefore,  the  plaintiff  may  have  in  the  premises,  this  action, 
which  is  brought  upon  the  instrument  mentioned  to  recover 
the  price  therein  agreed  to  be  paid  by  the  defendant  for  the 
machines,  cannot  be  maintained. 

The  verdict  was  therefore  right,  and  the  order  denying  a  new 
trial  is  accordingly  affirmed. 

Farquahar  v.  McAlevy,  142  Pa.  Shoshonetz  v.  Campbell,  24  Pac. 

St..  233  ;  <^'^2  ;  7  Utah,  46  ; 

Gross  V.  Jordeu,  83  Me.  384  ;  22  Hays  v.  Jordan,  85  Ga.  741  (11  S. 

Atl.  250-,  E.  833). 


IN    PERSONALTY — SALES.  249 


IV. 

EFFECTS. 

I. 

TRANSFER  OF  TITLE. 

a. 

Test. 

In  determining  when  the  title  to  the  chattel  passes 
from  the  seller  to  the  buyer,  the  intention  of  the  parties 
to  the  contract  of  sale  is  the  controlling  test^  and  this 
intention  is  to  be  ascertained  from  the  language  of  the 
parties,  the  subject-matter,  and  the  various  i'acts  and 
circumstances   attending    the    transaction. 

Hatch  v.  Oil  Co. 

Supreme  Court  of  the  United  States. 

100  U.  S.  124. 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  Court. 

Contracts  for  tlie  purchase  and  sale  of  chattels,  if  complete 
and  unconditional  and  not  within  the  Statute  of  Frauds,  are 
sufficient,  as  between  the  parties,  to  vest  the  property  in  the 
purchaser,  even  without  delivery  ;  the  rule  being  that  such  a 
contract  constitutes  a  sale  of  the  thing,  and  that  its  etfect  is, 
if  not  prejudicial  to  creditors,  to  transl'er  the  property  to  the 
purchaser  against  every  person  not  holding  the  same  under  a 
bonajide  title  for  a  valuable  consideration  without  notice:  The 
Sarah  Ann,  2  Sumn.  211  ;  Gibson  v.  Stevens,  8  How.  384,  399  ; 
2  Kent,  Com.  (12th  ed.)  493;  Leonard  v.  Davis,  1  Black,  476- 
483. 

Nine  hundred  and  forty-four  thousand  white-oak  barrel- 
staves,  of  the  value  of  $17,500,  were  attached  by  the  defendant 


250  ILLUSTRATIVE    CASES 

as  sheriff  of  the  county,  under  certain  processes  mesne  and 
tinal,  which  he  held  for  service  against  the  manufacturers  of 
the  staves,  to  secure  certain  dehts  which  they  owed  to  their 
creditors.  I^o  irregularity  in  the  proceedings  is  suggested,  but 
the  plaintitis  claimed  to  be  the  owners  of  the  staves  by  pur- 
chase from  the  njanufacturers,  and  they  brought  replevin  to 
recover  the  property.  Service  was  made,  and  the  defendant 
appeared  and  demanded  a  trial  of  the  matters  set  forth  in  the 
declaration.  Issue  having  been  joined  between  the  parties, 
they  went  to  trial,  and  the  verdict  and  judgment  were  in  favor 
of  the  plaintiifs.  Exceptions  were  tiled  by  the  defendant,  and 
he  sued  out  the  present  writ  of  error. 

Errors  assigned  in  the  Court  are  as  follows :  1.  That  the 
Court  erred  in  instructing  the  jury  that  as  soon  as  the  staves 
were  piled  and  counted,  as  provided  in  the  second  agreement, 
the  title  to  the  same  vested  in  the  plaintift'  company  as  vendee, 
and  in  refusing  to  instruct  the  jury  that  the  only  interest  the 
plaintiffs  acquired  in  the  staves  before  they  were  delivered  was 
as  security  for  advances  in  the  nature  of  a  mortgage  interest. 
2.  That  the  Court  erred  in  refusing  to  instruct  the  jury  that, 
if  there  was  no  actual  delivery  of  the  property  and  change  ot 
possession,  the  agreement  of  sale  was  void  as  against  the  cred- 
itors of  the  manufacturers,  because  not  recorded  as  required  by 
statute.  3.  That  the  Court  erred  in  refusing  to  instruct  the 
jury  that  if  the  evidence  did  not  show  that  the  fifty  thousand 
staves  not  piled  on  the  leased  land  were  not  counted,  the  title 
to  that  parcel  did  not  pass  to  the  plaintiffs  for  any  purpose, 
and  that  the  defendant,  as  to  that  jiarcel,  was  entitled  to  their 
verdict.  4.  That  the  Court  erred  in  refusing  to  instruct  the 
jury  that  under  the  agreement  no  title  to  any  of  the  staves 
passed  to  the  plaintiffs  until  they  were  actually  placed  upon 
the  leased  land  and  Avcre  counted  by  the  designated  person,  and 
in  instructing  the  jury  that  the  title  to  the  staves  piled  near 
the  leased  land  passed  to  the  plaintiffs.  5.  That  the  Court 
erred  in  refusing  to  instruct  the  jury  that  no  title  to  any  staves 
passed  to  the  plaintiffs  other  than  those  contracted  to  be  sold 
by  the  first  agreement,  and  that  if  the  jury  find  that  there  was 
any  portion  of  the  staves  replevied  not  of  that  description,  that 
as  to  such  portion  the  plaintiffs  are  not  entitled  to  recover.     6. 


IN    PERSONALTV — SALES.  251 

That  the  Court  erred  in  excluding  tlie  testimonj  offered  by  the 
defendant,  as  set  forth  in  the  record. 

Sufficient  appears  to  show  that  the  manufacturers  of  the 
staves,  on  the  day  alleged,  contracted  with  the  plaintiffs  to 
sell  them  one  million  of  white-oak  barrel-staves  of  certain  de- 
scribed dimensions,  to  be  delivered  as  therein  provided,  for  the 
price  of  $30  per  thousand,  subject  to  count  and  inspection  by 
the  plaintiffs,  who  agreed  to  receive  and  jiay  for  the  same  as 
fast  as  inspected.  But  before  the  staves  had  been  furnished, 
to  wit,  on  the  28th  of  August  in  the  same  year,  the  parties  en- 
tered into  a  new  agreement  in  regard  to  the  staves,  in  which 
they  refer  to  the  prior  one,  and  stipulate  that  it  is  to  continue 
in  operation,  subject  to  modiiications  made  in  the  new  contract, 
of  which  the  following  are  very  material  to  the  present  inves- 
tigation :  1.  That  the  manufacturers  shall  make  and  deliver 
the  staves  properly  piled  in  some  convenient  place,  to  be  agreed 
between  the  parties,  on  land  in  Deerfield,  to  be  controlled  by 
the  jilaintiffs,  and  that  the  delivery  shall  be  made  as  fast  as  the 
staves  are  sawed.  2.  That  the  plaintiff"  shall  furnish  a  man  to 
count  the  staves  from  week  to  week  as  the  same  shall  be  piled. 
3.  That  when  the  staves  shall  be  so  piled  and  counted,  the  per- 
son counting  the  same  shall  give  the  manufacturers  a  certificate 
of  the  amount,  which,  wlien  presented  to  the  plaintiffs,  shall 
entitle  the  party  to  a  payment  of  $17  per  thousand  as  part  of 
the  purchase  price.  4.  That  upon  the  piling  and  counting  of 
the  staves  as  provided,  "the  delivery  of  the  same  shall  be 
deemed  complete,  and  that  said  staves  shall  then  become  and 
thenceforth  be  the  property  of  the  plaintiffs  absolutely  and  un- 
conditionally. 

Other  material  modifications  of  the  first  agreement  were 
made  by  the  second,  some  of  which  it  is  not  deemed  necessary 
to  consider  in  disposing  of  the  case. 

Early  measures  were  ado|»ted  to  j»erfect  the  arrangements,  as 
appears  from  the  fact  that  the  manufacturers,  October  4th  in  the 
same  year,  leased  to  the  plaintiffs  a  small  tract  of  land  to  be 
used  for  piling  and  storing  the  staves ;  and  the  case  shows  that 
all  the  staves  except  fifty  thousand  were  piled  on  that  site,  the 
fifty  thousand  staves  being  piled  on  land  owned  by  the  nmnu- 
facturers,  about  one  hundred  or  one  hundred  and  fifty  feet  dis- 


252  ILLUSTRATIVE    CASES 

tant  from  the  pile  on  the  leased  tract,  on  which  were  certain 
buildings  owned  and  occupied  by  the  lessors,  the  mill  where 
the  staves  were  manufactured  being  situated  on  the  ^ame  sec- 
tion a  little  distant  from  the  other  buildings.  Kone  of  the 
staves  were  manufactured  when  the  contracts  were  made. 

It  was  admitted  by  the  plaintiffs  that  the  lease  was  never 
filed  in  the  clerk's  office,  and  that  it  was  never  recorded  in  the 
office  of  the  county  register  of  deeds.  Certain  admissions  were 
also  made  by  the  defendant,  as  follows:  That  the  parties  to  the 
contracts  acted  in  good  faith  in  making  the  same,  and  that  the 
contracts  and  lease  were  duly  executed  ;  that  all  the  staves 
seized  were  manufactured  by  the  said  contractors,  and  that  all 
except  fifty  thousand  of  the  same  were  piled  on  the  leased 
tract. 

Nothing  was  required  at  common  law  to  give  validity  to  a 
sale  of  personal  property  except  the  mutual  assent  of  the  par- 
ties to  the  contract.  As  soon  as  it  was  shown  by  competent 
evidence  that  it  was  agreed  by  mutual  assent  that  the  one 
should  transfer  the  absolute  property  in  the  thing  to  the  other 
for  a  money  price,  the  contract  was  considered  as  completely 
proven  and  binding  on  both  parties.  If  the  property  by  the 
terms  of  the  agreement  passed  immediately  to  the  buyer,  the 
contract  was  deemed  a  bargain  and  sale;  but  if  the  property  in 
the  thing  sold  was  to  remain  for  a  time  in  the  seller,  and  only 
to  pass  to  the  buyer  at  a  future  time  or  on  certain  conditions 
inconsistent  with  its  immediate  transfer,  the  contract  was 
deemed  an  executory  agreement.  Contracts  of  the  kind  are 
made  in  both  forms,  and  both  are  equally  legal  and  valid ;  but 
the  rights  which  the  parties  acquire  under  the  one  are  very 
difiercnt  from  those  secured  under  the  other.  Ambiguity  or 
incompleteness  of  language  in  the  one  or  the  other  frequently 
leads  to  litigation  ;  but  it  is  ordinarily  correct  to  sa}'  that  when- 
ever a  controversy  arises  in  such  a  case  as  to  the  true  character 
of  the  agreement,  the  question  is  rather  one  of  intention  than 
of  strict  law,  the  general  rule  being  that  the  agreement  is  just 
what  the  parties  intended  to  make  it,  if  the  intent  can  be  col- 
lected from  the  language  employed,  the  subject-matter,  and  the 
attendant  circumstances. 

Where  the  specific  goods  to  which  the  contract  is  to  attach 


IN    PERSONALTY — SALES.  253 

are  not  ppecified,  the  ordinary  conclusion  is  tliat  tlie  parties 
only  conteTn}>lated  an  executory  aLrrecnient.  lieported  cases  il- 
lustrate and  conlirni  that  piojiosition,  and  many  show  that 
where  the  goods  to  be  transferred  are  clearly  sj)e(:-iHed  and  the 
terms  of  sale,  including  the  price,  are  explicitly  given,  the 
property,  as  between  the  parties,  passes  to  the  buyer  even  with- 
out actual  payment  or  delivery  :  2  Kent,  Com.  (12t]i  cd.)  492 ; 
Tome  V.  Dubois,  G  "NV^all.  548,  554;  Carpenter  r.  Hale,  8  Gray 
(Mass.),  157  ;  Martineau  v.  Kitching,  Law  Rep.  7  Q.  B.  430, 
449  ;  Story,  Sales  (4th  ed.),  sect.  300. 

Standard  authorities  also  show  that  where  there  is  no  mani- 
festation of  intention,  except  what  arises  from  the  terms  of 
sale,  the  presumption  is,  if  the  thing  to  be  sold  is  specified  and 
it  is  ready  for  immediate  delivery,  that  the  contract  is  an 
actual  sale,  unless  there  is  something  in  the  subject-matter  or 
attendant  circumstances  to  indicate  a  different  intention.  Well- 
founded  doubt  upon  that  subject  cannot  be  entertained  if  the 
terms  of  bargain  and  sale,  including  the  price,  are  explicit ;  but 
when  the  thing  to  be  sold  is  not  specified,  or  if  when  specified 
something  remains  to  be  done  to  the  same  by  the  vendor,  either 
to  put  it  into  a  deliverable  state  or  to  ascertain  the  price,  the 
contract  is  only  executor}'.  In  the  former  case  there  is  no 
reason  for  imputing  to  the  parties  any  intention  to  suspend  the 
transfer,  inasmuch  as  the  tiling  to  be  sold  and  the  price  have 
been  specified  and  agreed  by  mutual  consent,  and  nothing  re- 
mains to  be  done.  Quite  unlike  that,  something  material  re- 
mains to  be  done  by  the  seller  in  tlie  latter  case  before  delivery, 
from  which  it  may  be  i)resumed  that  the  parties  intended  to 
make  the  transfer  dependent  upon  the  performance  of  the  things 
yet  to  be  done. 

Suppose  that  is  so,  still  every  presumption  of  the  kind  must 
yield  to  proof  of  a  contrary  intent,  and  it  may  safely  be  af- 
firmed that  the  parties  may  eficctually  agree  that  the  property 
in  the  specific  thing  sold,  if  ready  for  delivery,  shall  pass  to 
the  buyer  before  such  requirements  are  fulfilled,  even  though 
the  thing  remains  in  the  possession  of  the  seller. 

Where  a  bargain  is  made  for  tlie  purchase  of  goods,  and 
nothing  is  said  about  jiayment  or  delivery,  Bailey,  J.,  said  the 
property  passes  immediately,  so  as  to  cast  upon  the  purchaser 


254  ILLUSTRATIVE    CASES 

all  future  risk,  if  nothing  remains  to  be  done  to  the  goods,  al- 
though he  cannot  take  them  away  without  paying  the  price: 
Simmons  v.  Swift,  5  B.  &  C.  857 ;  11  Eng.  Con).  Law. 

Sales  of  goods  not  specified  stand  upon  a  different  footing, 
the  general  rule  being  that  no  property  in  such  goods  passes 
until  delivery,  because  until  then  the  very  goods  sold  are  not 
ascertained.  But  where  by  the  contract  itself  the  vendor  appro- 
priates to  the  vendee  a  specific  chattel,  and  the  latter  thereby 
agrees  to  take  the  same  and  to  pay  the  stipulated  price,  the 
parties,  says  Parke,  J.,  are  thus  in  the  same  situation  as  they 
would  be  after  a  delivery  of  goods  under  a  general  contract, 
for  the  reason  that  the  very  appropriation  of  the  chattel  is 
equivalent  to  delivery  by  the  vendor,  and  the  assent  of  the 
vendee  to  take  the  specific  chattel  and  to  pay  the  price  is 
equivalent  to  accepting  possession :  Dixon  v.  Yates,  5  Barn. 
&  Adol.  313,  340 ;  27  Eng.  Com.  Law ;  Shep.  Touch.  224. 

When  the  agreement  for  sale  is  of  a  thing  not  specified,  or 
for  an  article  not  manufactured,  or  of  a  certain  quantity  of 
goods  in  general  without  any  identification  of  them  or  an  ap- 
propriation of  the  same  to  the  contract,  or  ^^hen  something 
remains  to  be  done  to  put  the  goods  into  a  deliverable  state,  or 
to  ascertain  the  price  to  be  paid  by  the  buyer,  the  contract  is 
merely  an  executory  agreement,  unless  it  contains  words  war- 
ranting a  different  construction,  or  there  be  something  in  the 
subject-matter  or  the  circumstances  to  indicate  a  different  in- 
tention :  Benjamin,  Sales  (2d  ed.),  257;  Blackburn,  Sales,  151 ; 
Young  V.  Matthews,  Law  Rep.  2  C.  P.  127-129 ;  Logan  v.  Le- 
Mesurier,  6  Moore  P.  C.  C.  116  ;  Ogg  v.  Shuter,  Law  Rep.  10 
C.  P.  159-162 ;  Langton  v.  Higgins,  4  H.  &  N.  400 ;  Turley  v. 
Bates,  2  H.  &  C.  200-208. 

Exactly  the  same  views  are  expressed  by  the  Supreme  Court 
of  the  State  as  those  maintained  in  the  preceding  cases.  Speak- 
ing to  the  same  point,  Cooley,  C.  J.,  says,  when,  under  a  con- 
tract for  the  purchase  of  personal  property,  something  remains 
to  be  done  to  identify  the  property  or  to  put  it  in  a  condition 
for  delivery,  or  to  determine  the  sum  that  shall  be  paid  for  it, 
the  presumption  is  always  very  strong  that  by  the  understand- 
ing of  the  parties  the  title  is  not  to  pass  until  such  act  has 
been  fully  accomplished.     Such  a  presumption,  however,  is  by 


IN    PERSONALTY  —  SALES.  Z-JO 

no  means  conclusive  ;  for  if  one  luirgaiiis  with  another  for  the 
l)urchase  of  such  property,  and  the  parties  agree  that  what  they 
do  in  respect  to  its  transfer  sliall  have  the  effect  to  vest  the 
title  in  the  huyer,  he  will  heconie  the  owner,  as  the  question 
is  merely  one  of  mutual  assent,  the  rule  heing,  that  if  the  minds 
of  the  parties  have  met,  and  they  have  agreed  that  the  title 
shall  pass,  nothing  further,  as  hetween  tliemselves,  is  required^ 
unless  the  case  is  one  within  the  Statute  of  Frauds.  (Conse- 
quently, it  was  held  by  the  same  Court  that  if  one  purchases 
gold  bullion  by  weight,  and  receives  delivery  before  it  becomes 
convenient  to  weigh  it,  and  on  the  understanding  that  the 
wciiihinijr  shall  be  done  afterwards,  the  bullion  would  become 
the  property  of  the  buyer  and  be  at  his  risk,  unless  there 
were  some  qualifying  circumstances  in  the  case  :  Wilkinson  v. 
Holiday,  33  Mich.  386-388  ;  Lingham  v.  Eggleston,  27  Id.  324, 
328  ;  Ortnian  v.  Green,  20  Id.  209,  212. 

Decisions  of  other  States  are  to  the  same  effect,  of  which  the 
following  are  examples:  Pacific  Iron  Works  v.  Long  Island 
Railroad  Co.,  62  N.  Y.  272,  274 ;  Groff  z;.  Belche,  62  Mo.  400- 
402 ;  Morse  ?;.  Sherman,  100  Mass.  430,  433  ;  Riddle  v.  Yar- 
num,  20  Pick.  (Mass.)  280,  283  ;  Chapman  v.  Shepard,  39  Conn. 
413-419  ;  Fuller  v.  Bean,  34  N.  II.  290-300. 

Modern  decisions  of  the  most  recent  date  support  the  propo- 
sition that  a  contract  for  the  sale  of  specific  ascertained  goods 
vests  the  property  immediately  in  the  buyer,  and  that  it  gives 
to  the  seller  a  right  to  the  price,  unless  it  is  shown  that  such 
was  not  the  intention  of  the  parties:  Gilmore  v.  Supple,  11 
Moore  P.  C.  C.  551  ;  Benjamin,  Sales  (2d  ed.),  280  ;  Dunlop  v. 
Lambert,  6  CI.  &  Fin.  600  ;  Calcutta  Co.  v.  DeMattos,  32  Law 
J.  Rep.  N.  s.  Q.  B.  322-338. 

"There  is  no  rule  of  law,"  says  Blackburn,  J.,  in  the  case 
last  cited,  "to  prevent  the  parties  in  such  cases  from  making 
whatever  bargain  they  please.  If  they  use  words  in  the  con- 
tract showing  that  they  intend  that  the  goods  shall  be  shijiped 
by  the  person  who  is  to  supply  the  same,  on  the  terms  that 
when  shipped  they  shall  be  the  consignee's  property  and  at  his 
risk,  so  that  the  vendor  shall  be  paid  for  them  whether  deliv- 
ered at  the  port  of  destination  or  not,  this  intention  is  effec- 
tual :"     s.  c,  33  Id.  214  ;  11  ^Y  R.  1024,  1027. 


I 


256  ILLUSTRATIVE   CASES 

Support  in  some  of  the  cases  cited  is  found  to  the  theory 
that  the  terms  of  the  bargain  and  sale  in  this  case,  inasmuch 
as  they  indicate  that  the  intention  of  the  sellers  was  to  appro- 
priate the  staves  when  manufactured  to  the  contract,  are  sufR- 
cient  to  vest  the  property  in  the  buyer  when  the  agreed  sum 
to  be  advanced  was  paid  even  without  any  delivery;  but  it  is 
quite  unnecessary  to  decide  that  question  in  view  of  the  evi- 
dence and  what  follows  in  the  second  contract  between  the 
parties. 

Provision  was  made  that  a  convenient  place  should  be  desig- 
nated by  the  parties  where  the  staves  should  be  piled  as  fast  as 
they  could  be  sawed.  Such  a  place  was  provided  to  the  ac- 
ceptance of  both  parties,  and  the  plaintiffs  furnished  a  man  as 
agreed  to  count  the  same  from  week  to  week  as  the  staves 
were  piled.  Enough  appears  to  show  that  all  the  staves,  ex- 
cept as  aforesaid,  were  piled  and  delivered  at  that  agreed 
place. 

In  a  contract  of  sale,  if  no  place  of  delivery  is  specified  in 
the  contract,  the  articles  sold  must,  in  general,  be  delivered  at 
the  place  where  they  are  at  the  time  of  the  sale,  unless  some 
other  place  is  required  by  the  nature  of  the  article  or  by  the 
usage  of  the  trade  or  the  previous  course  of  dealing  between 
the  parties,  or  is  to  be  inferred  from  the  circumstances  of  the 
case.  Decided  cases  to  that  eft'ect  are  numerous  ;  but  the  rule 
is  universal,  that  if  a  place  of  delivery  is  prescribed  as  a  part 
of  the  contract,  the  vendee  is  not  bound  to  accept  a  tender  of 
the  goods  made  in  any  other  place,  nor  is  tlje  vendor  obliged 
to  make  a  tender  elsewhere  :  Story,  Sales  (4th  ed.),  sect.  308. 

Where,  by  the  terms  of  the  contract,  the  article  is  to  be 
delivered  at  a  particular  jtlace,  the  seller,  before  he  can  recover 
his  pay,  is  bound  to  prove  the  delivery  at  that  place:  Savage 
Manuf.  Co.  V.  Armstrong,  19  Me.  147. 

So  when  the  intention  of  the  parties  as  to  the  place  of  deliv- 
ery can  be  collected  from  the  contract,  and  the  circumstances 
proved  in  relation  to  it,  the  delivery  should  be  made  at  such 
place,  even  though  some  alterations  have  been  made  in  the  place 
designated :  Howard  v.  Miner,  20  Id.  325-330. 

Mucli  discussion  is  certainl}'  unnecessary  to  show  that,  where 
the  terms  of  bargain  and  sale  are  in  the  usual  form,  an  absolute 


IX    PERSONALTY — SALES.  257 

delivery  of  the  article  sold  vests  the  title  in  the  purchaser,  as 
the  authorities  upon  the  sulyect  to  that  eflcct  are  numerous, 
niiiiiiinious,  and  decisive:  II}<le  v.  Latliroj),  3  Keyes  (X.  Y.), 
597  ;  Macomber  v.  Parker,  13  Pick.  (Mass.)  175,  183. 

In  an  action  for  goods  sold  and  delivered,  if  the  jilaintifT 
proves  delivery  at  tlie  jilace  agreed  and  that  there  remained 
nothing  further  for  him  to  do,  he  need  not  show  an  acceptance 
by  the  defendant  :   Xichols  v.  Morse,  100  Mass.  523. 

Even  when  a  place  of  delivery  is  speciticd,  it  does  not  necessa- 
rily follow  that  the  title  does  not  i)ass  before  they  reach  the 
designated  place,  as  that  may  depend  upon  the  intention  of 
the  parties;  and  whether  they  did  or  did  not  intend  that  the 
title  should  vest  before  that  is  a  question  for  the  jury,  to  be 
determined  by  the  words,  acts,  and  conduct  of  the  parties  and 
all  the  circumstances:  Dyer  v.  Libbey,  61  Me.  45. 

Where  it  appears  that  there  has  been  a  complete  delivery  of 
the  property  in  accordance  with  the  terms  of  a  sale,  the  title 
passes,  although  there  ren)ains  something  to  be  done  in  order 
to  ascertain  the  total  value  of  the  goods  at  the  rates  speciticd  in 
the  contract:  Burrows  v.  Whitaker,  71  X.  Y,  291-296;  Graft 
V.  Fitch,  58  111.  373  ;  Russell  v.  Carrington,  42  X.  Y.  118, 125  ; 
Terry  v.  Wheeler,  25  Id.  520,  525. 

Beyond  controversy,  such  must  be  the  rule  in  this  case, 
because  the  contract  provides  that  upon  the  piling  and  count- 
ing the  staves  as  required  by  the  instrument  the  delivery  o 
the  same  shall  be  deemed  complete,  and  that  the  staves  shall 
then  become  and  henceforth  be  the  property  of  the  plaintiffs 
absolutely  and  unconditionally. 

Except  the  fifty  thousand  before  named,  all  the  staves  were 
so  piled  and  counted  ;  and  the  case  shows  that  the  person  desig- 
nated to  count  the  same  approved  fourteen  certificates  specify- 
ing the  respective  amounts  of  the  several  parcels  delivered,  and 
that  the  plaintifts  paid  on  each  the  $17  per  thousand  advance 
as  agreed,  amounting  in  all  to  $15,148. 

Personal  property  may  be  purchased  in  an  unfinished  condi- 
tion, and  the  buyer  may  acquire  the  title  to  the  same  though 
the  possession  be  retained  by  the  vendor  in  order  that  he  may 
tit  it  for  delivery,  if  the  intention  of  the  parties  to  that  effect 
is  fully  proved :  Elgee  Cotton  Cases,  22  VV^^11.  180. 


258  ILLUSTRATIVE    CASES 

After  an  executory  contract  has  been  made,  it  may  be  con- 
verted into  a  complete  bargain  and  sale  by  specitying  the  goods 
to  which  the  contract  is  to  attach,  or,  in  legal  phrase,  by  the 
appropriation  of  specific  goods  to  the  contract,  as  the  sole  ele- 
ment deficient  in  a  perfect  sale  is  thus  supplied :  Benjamin, 
Sales  (2d  ed.),  263  ;  Rohde  v.  Thvvaites,  6  B.  &  C.  388 ;  13 
Eng.  Com.  Law. 

Examples  of  the  kind  are  numerous  in  cases  where  the  goods 
are  not  specified,  and  the  decided  cases  show  that  if  the  seller 
subsequently  selects  the  goods  and  the  buyer  adopts  his  acts, 
the  contract  which  before  was  a  mere  agreement  is  converted 
into  an  actual  sale  and  the  property  passes  to  the  buyer.  One 
hundred  quarters  of  barley  out  of  a  bulk  in  a  granary  were 
agreed  to  be  purchased  by  the  plaintifl",  he  haviug  agreed  to 
send  his  own  sacks,  in  which  the  same  might  be  conveyed  to  an 
agreed  place.  He  sent  sacks  enough  to  contain  a  certain  part 
of  the  barley,  which  the  seller  filled,  but,  being  on  the  eve  of 
bankruptcy,  he  refused  to  deliver  auy  part  of  the  quantity  sold, 
and  emptied  the  barley  in  the  sacks  back  into  the  bulk  in  the 
granary.  Held,  in  an  action  brought  to  recover  the  whole 
amount,  that  the  quantity  placed  in  the  sacks  passed  to  the 
purchaser,  as  that  part  was  appropriated  by  the  bankrupt  to 
the  plaintifi':  Aldrich  v.  Johnson,  7  E.  &  B.  885;  90  Eng. 
Com.  Law ;  Brown  v.  Hare,  3  H.  &  N.  484  ;  s.  c,  4  Id.  821  ; 
Tregeles  v.  Sewell,  7  LI.  573. 

Stipulations  in  respect  to  the  forwarding  and  shipping  the 
staves  are  also  contained  in  the  second  agreement;  but  it  is  not 
necessary  to  enter  into  any  discussion  of  that  topic,  as  it  appears 
that  the  manufacturers,  if  they  did  any  thing  in  that  regard, 
were  to  act  as  the  agents  of  the  plaintifts,  and  if  they  failed  to 
transport  the  same  to  the  place  of  shipment  seasonably,  the 
plaintiflTs  were  authorized  to  do  it  at  their  expense.  Nor  is  it 
necessary  to  discuss  the  stipulations  as  to  insurance,  as  it  is 
clear  that  they  contain  nothing  inconsistent  with  the  theory  that 
the  property  vested  in  the  plaintifts  as  soon  as  the  staves  were 
piled  and  delivered  at  the  agreed  place  of  delivery. 

Proof  of  a  satisfactory  character  was  exhibited  that  much  the 
greater  portion  of  the  staves  were  piled  upon  the  leased  site, 
and  that  the  residue  were  piled  on  land  adjoining,  and  within  a 


IN   PEKSONALTY — SALES.  250 

hundred  or  a  hundred  and  fifty  feet  from  tlie  larger  pile.  Wit- 
nesses examined  the  staves  piled  there  several  times,  and  one 
of  them  testified  that  he  was  there  July  10,  1875,  Tvith  one  of 
the  sellers,  and  made  a  thorough  count  of  the  staves,  the  num- 
ber counted  being  780,000,  and  he  states  that  he  counted  the 
staves  in  both  piles,  and  that  there  were  no  other  white-oak 
staves  on  the  premises. 

Taken  as  a  whole,  the  evidence  shows  that  the  parties  treated 
both  piles  of  the  staves  as  delivered  under  the  contract,  tlie  one 
as  much  as  the  other,  and  that  they  regarded  both  as  properly 
included  in  the  adjustment  of  the  amounts  to  be  advanced. 
When  the  agent  of  the  plaintifi:s  went  there,  as  before  ex- 
plained, with  one  of  the  sellers,  it  is  certain  that  they  counted 
both  piles,  and  it  is  clear  that  in  view^  of  the  evidence  and  the 
circumstances  the  jury  were  warranted  in  finding  that  the  pro- 
perty in  all  the  white-oak  staves  piled  there  passed  to  the  plain- 
tiffs when  they  were  piled  and  delivered  at  that  place,  neither 
party  having  objected  to  the  place  where  the  smaller  parcel 
was  piled. 

Actual  delivery  of  the  staves  having  been  proved,  it  is  not 
necessary  to  make  any  reply  to  the  defence  set  up  under  the 
State  statute  in  respect  to  the  sale  of  goods  unaccompanied  by 
a  change  of  possession.  Objection  is  also  made  that  the  lease 
of  the  premises  designated  as  the  place  of  delivery  was  not  re- 
corded, wdiich  is  so  obviously  without  merit  that  it  requires  no 
consideration. 

Viewed  in  the  light  of  these  suggestions,  it  is  obvious  that 
the  first  five  assignments  of  error  must  be  overruled. 

Exception  was  also  taken  to  the  ruling  of  the  Court  below  in 
excluding  certain  testimony  offered  by  the  defendant  to  show 
that  the  staves  were  not  cut  and  made  at  the  time  some  of  the 
certificates  were  given  to  secure  the  advance,  and  to  show  that 
the  staves  included  in  the  small  }»ilewcre  never  in  fact  counted, 
and  that  no  certificate  specially  applicable  to  them  was  ever 
given.  Responsive  to  the  objection  of  the  defendant,  the  Court 
below  remarked  that,  if  the  staves  were  subsequently  piled 
there  to  the  satisfaction  of  the  plaintitts,  the  title  passed,  it 
appearing   that   the   certificates  were  given   and  the  advance 


260  ILLUSTRATIVE   CASES 

paid,  which  is  all  that  need  be  said   upon  the  subject,  as  it  is 
plain  that  the  ruling  is  without  just  exception. 
Judgment  affirmed. 

DARLINGTON,  P.  P.,  77-81.  Morrow  v.  Reed  ct  al,  30  Wis.  81 ; 

Hutchinson  v.  Hunter,  7  Pa.  St.  Graff  v.  Fitch,  58  111.  373  ; 

140  ;  Mason  r.  Thompson,  18  Pick.  305. 
Groat  et  al.  v.  Gile,  51  N.  Y.  430  ; 


b. 
Tests   Applied. 

1. 

EXECUTED  SALE. 

Chattel    specified,   Non-payment,    Non-delivery. 

Phillips,  by  his  Guardian,  v.  Moor. 

Supreme  Judicial  Court  of  Maine,  1880. 

71  Maine,  78. 

Barrows,  J.  Negotiations  by  letter,  looking  to  the  purchase 
by  the  defendant  of  a  quantity  of  hay  in  the  plaintiff's  barn, 
had  resulted  in  the  pressing  of  the  hay  by  the  defendant's  men, 
to  be  paid  for  at  a  certain  rate  if  the  terms  of  sale  could 
not  be  agreed  on ;  and  in  written  invitations  from  plaintiffs 
guardian  to  defendant  to  make  an  offer  for  the  hay,  in  one  of 
which  he  says:  "If  the  price  is  satisfactory,  I  will  write  you 
on  receipt  of  it ;"  and  in  the  other :  "  If  your  offer  is  satis- 
factory, I  shall  accept  it ;  if  not,  I  will  send  you  the  money  for 
pressing."  Friday,  June  14th,  defendant  made  an  examination 
of  the  hay  after  it  had  been  pressed,  and  wrote  to  plaintiff's 
guardian  the  same  day  .  .  .  .  "  Will  give  $9.50  per  ton,  for 
all  but  three  tons,  and  for  that  I  will  give  $5."  Plaintiff's 
guardian  lived  in  Carmel,  14  miles  from  Bangor,  where  de- 
fendant lived,  and  there  is  a  daily  mail  communication  each 
way  between  the  two  places.     The  card  containing  defendant's 


IN    PERSONALTY — SALES.  201 

offer  was  mailed  at  Bangor,  June  15lli,  and  probably  received 
by  plaintiff,  in  regular  course,  about  nine  o'clock  A.  M.  that 
day.  The  plaintiff  does  not  deny  tliis,  thougli  be  says  be  does 
not  always  go  to  the  office,  and  tbe  mail  is  sometimes  carried 
by.  Receiving  no  better  oiler,  and  being  offiu'ed  k-.ss  by  anotber 
dealer,  on  Thursday,  June  20th,  be  went  to  Bangor,  and  there, 
not  meeting  the  defendant,  sent  him  through  the  post-office  a 
card,  in  which  lie  says  be  was  in  hopes  defendant  would  have 
paid  him  $10  for  the  best  quality:  "But  you  can  take  the 
ha}' at  your  offer,  and  when  you  get  it  hauled  in,  if  you  can 
pay  the  $10  I  would  like  to  have  you  do  it,  if  the  hay  proves 
good  enough  for  tbe  price."  Defendant  received  this  card  that 
night  or  tbe  next  morning,  made  no  reply,  and  Sunday  morn- 
ing the  bay  was  burnt  in  the  barn.  Shortly  after,  when  the 
parties  met,  the  plaintiff  claimed  the  price  of  the  hay,  and  de- 
fendant denied  his  liability  and  asserted  a  claim  for  tlie  press- 
ing.    Hence  this  suit. 

Tbe  guardian's  acceptance  of  the  defendant's  offer  was  ab- 
solute and  unconditional.  It  is  not  in  any  legal  sense  qualified 
by  tbe  expression  of  bis  hopes  as  to  what  the  defendant  would 
have  done,  or  what  he  would  like  to  have  liini  do,  if  the  bay 
when  hauled  proved  good  enough.  Aside  from  all  this,  the 
defendant  was  told  that  he  could  take  the  hay  at  bis  own  offer. 
It  seems  to  have  been  the  intention  and  understanding  of  both 
the  parties  that  tbe  property  should  pass.  The  defendant  does 
not  deny  what  the  guardian  testifies  he  told  him  at  their  con- 
ference after  the  hay  was  burned, — that  he  had  agreed  with  a 
man  to  haul  the  hay  for  sixty  cents  a  ton.  The  guardian  docs 
not  seem  to  have  claimed  any  lien  for  the  price,  or  to  have  ex- 
pected payment  until  the  hay  should  have  been  hauled  by  the 
defendant.  But  the  defendant  insists  that  the  guardian's  ac- 
ceptance of  bis  offer  was  not  seasonable ;  that  in  the  initiatory 
correspondence  the  guardian  bad  in  substance  promised  an 
immediate  acceptance  or  rejection  of  such  offer  as  he  might 
make,  and  that  the  offer  was  not,  in  fact,  accepted  within  a 
reasonable  time. 

If  it  be  conceded  that  for  want  of  a  more  prompt  acceptance 
the  defendant  had  the  right  to  retract  his  offer,  or  to  refuse  to 
18 


262  ILLUSTRATIVE    CASES 

be  bound  by  it  wben  notified  of  its  acceptance,  still  the  tlofen- 
dant  did  not  avail  himself  of  such  right.  -  Two  days  elapsed 
before  the  fire  after  the  defendant  had  actual  notice  that  his 
ofier  was  accepted,  and  he  permitted  the  guardian  to  consider 
it  sold,  and  made  a  bargain  with  a  third  person  to  haul  it. 

It  is  true  that  an  ofier,  to  be  binding  upon  the  party  making 
it,  must  be  accepted  within  a  reasonable  time :  Peru  v.  Turner, 
10  Maine,  185 ;  but  if  the  party  to  whom  it  is  made  makes 
known  his  acceptance  of  it  to  the  party  making  it  within  any 
period  whicb  he  could  fairly  have  supposed  to  be  reasonable, 
good  faith  requires  the  maker,  if  he  intends  to  retract  on 
account  of  the  delay,  to  make  known  that  intention  promptly. 
If  he  does  not,  he  must  be  regarded  as  waiving  any  objection 
to  the  acceptance  as  being  too  late. 

The  question  here  is.  In  whom  was  the  property  in  the  hay 
at  the  time  of  its  destruction? 

It  is  true,  as  remarked  by  the  Court  in  Thompson  v.  Gould, 
20  Pick.  139,  that  "  When  there  is  an  agreement  for  the  sale 
and  purchase  of  goods  and  chattels,  and,  after  the  agreement, 
and  before  the  sale  is  completed,  the  property  is  destroyed  by 
casualty,  the  loss  must  be  borne  by  the  vendor,  the  property 
remaining  vested  in  him  at  the  time  of  its  destruction  :"  Tarling 
V.  Baxter,  9  Dow.  &  Ryl.  276  ;  Hinde  v.  Whitehouse,  7  East. 
558  ;  Pugg  V.  Minett,  11  Id.  210. 

But  we  think  that  under  the  circumstances  here  presented 
the  sale  was  completed  and  the  property  vested  in  the  vendee. 
The  agreement  was  completed  by  the  concurrent  assent  of  both 
parties:  Adams  v.  Lindsell,  1  Barn.  &  Aid.  681;  Mactier  v. 
Frith,  6  Wend.  103. 

In  Dickson  v.  Yates,  5  Barn.  &  Adol.  313,  Parke,  J.,  re- 
marks (E.  C.  L.  P.  vol  27,  p.  92) :  "  Where  there  is  a  sale  of 
goods,  generally  no  property  in  them  passes  till  delivery,  be- 
cause until  then  the  very  goods  sold  are  not  ascertained  ;  but 
when,  by  the  contract  itself,  the  vendor  appropriates  to  the 
vendee  a  specific  chattel,  and  the  latter  thereby  agrees  to  take 
that  specific  chattel  and  to  pay  the  stipulated  price,  the  parties 
are  then  in  the  same  situation  as  they  would  be  after  a  de- 
livery of  goods  in  pursuance  of  a  general  contract.     The  very 


IN   PERSONALTY — SALES.  263 

appropriation  of  the  chattel  is  equivalent  to  delivery  by  the 
vendor,  and  the  assent  of  the  vendee  to  take  the  specific  chattel 
and  to  pay  tlie  ])rice  is  equivalent  to  his  accepting  possession. 
The  effect  of  the  contract,  therefore,  is  to  vest  the  property  in 
the  barirainee." 

The  omission  to  distinguish  Ijctween  general  contracts  for 
the  sale  of  goods  of  a  certain  kind  and  contracts  for  the  sale 
of  specific  articles  will  account  for  an}'  seeming  confusion  in 
the  decisions.  Cliancellor  Kent,  2  Com.  492,  states  the  doctrine 
thus:  "  When  the  terms  of  sale  are  asrreed  on  and  the  barijain 
is  struck,  and  everything  that  the  seller  has  to  do  with  the 
goods  is  complete,  the  contract  of  sale  becomes  absolute  with- 
out actual  payment  or  delivery,  and  the  property  and  risk  of 
accident  to  the  goods  vest  in  the  buyer."  That  doctrine  was 
expressly  approved  by  this  Court  in  Wing  v.  Clark,  24  Maine, 
3GG,  372,  where  its  origin  in  the  civil  law  is  referred  to.  And 
this  Court  went  further  in  Waldron  v.  Chase,  87  Maine,  414  ; 
and  held  that  when  the  owner  of  a  quantity  of  corn  in  bulk 
sold  a  (.-ertain  number  of  bushels  therefrom  and  received  his 
})ay,  and  the  vendee  had  taken  away  a  part  only,  the  property 
in  the  whole  quantity  sold  vested  in  the  buyer,  although  it 
had  not  been  measured  and  separated  from  the  heap,  and  that 
it  thenceforward  remained  in  charge  of  the  seller  at  the  buyer's 
risk. 

In  the  case  at  bar  all  the  liay  was  sold.  The  quality  had 
been  ascertained  hy  the  defendant.  The  price  was  agreed  on. 
The  defendant  had  been  told  that  he  might  take  it,  and  had 
nothing  to  do  but  send  the  man  whom  he  had  engaged  to  haul 
it  and  appropriate  it  to  himself  without  any  further  act  on  the 
part  of  the  seller. 

It  is  suggested  in  argument,  though  the  point  was  not  made 
at  the  trial,  where  the  facts  could  have  been  ascertained,  that 
there  is  no  proof  that  the  hay  was  properly  pressed  and  branded 
according  to  statute  requireuK'nts ;  and  the  case  of  Buxton  r. 
Hamblen,  32  Maine,  448,  is  cited  as  an  authority  upon  the 
strength  of  which  tlie  plainti ft"  should  be  nonsuited. 

If  the  point  were  fiiirly  open  to  the  defendant  in  this  stage 
of  the  case,  it  must  still   be  said  that  the  defendant  himself 


264  ILLUSTRATIVE   CASES 

nnclertook  to  do  the  pressing,  and  did  it ;  and  if  he  did  not  do 
it  properly,  he  cannot  take  advantage  of  his  own  wrong. 
Judgment  for  plaintifi'. 

DARLIXGTON,  P.  P.,  79.  McCandlish  v.  Newman,  22  Pa. 

Olyphant  v.  Baker,  5  Denio,  379 ;  St.  460  ; 

Oikll  V.  Boston  &  M.  Ry.,  109  Webber  t).  Davis,  44  Maine,  147; 

Mass.  50  ;  Whitcomb  v.  Whitney,  24  Mich. 

Rail  V.  Little  Falls  Lumber  Co.,  486  ; 

47  Miuu.  422  ;  Webster  v.  Anderson,  42  Mich. 

554. 


Chattels  not  specified,  Separation,  Same  Quality,  and 
Value, 

Chapman  v.  Shepard. 

Supreme  Court  of  Errors,  Connecticut,  1872. 

39  Conn.  413. 

Seymour,  J.  The  plaintiff  brought  his  action  of  trover  in 
three  counts : — 

1st.  For  the  alleged  conversion  of  three  hundred  and  eighty 
bas;:s  of  meal  belonging  to  the  plaintiff. 

2d.  For  the  conversion  of  seven  hundred  and  fifty  bags  of 
meal  belonging  to  the  plaintiff  and  defendant  as  tenants  in 
common. 

3d.  Alleging  the  meal  to  belong  to  the  plaintiff  and  defen- 
dant and  one  John  T.  Gill  as  tenants  in  common. 

It  appears  from  the  finding  of  facts  by  the  Judge  who  tried 
the  cause  in  the  Superior  Court,  that  the  defendant,  being  the 
owner  of  a  lot  of  bags  of  meal  consisting  of  between  five  and 
six  hundred,  on  the  10th  of  January,  1867,  sold  the  lot  to 
John  T.  Gill  at  the  price  of  $2.40  per  bag.  The  property  was 
then  in  a  schooner  lying  at  Long  Wharf,  in  IS^ew  Haven. 
Afterwards,  on  the  25th  of  January,  Gill  sold  to  the  plaintiff 
five  hundred  of  these  bags  still  remaining  in  the  schooner. 
Of  this  sale  the  plaintifi"  notified  the  defendant,  and  the  defen- 
dant gave  the  plaintifi'  authority  immediately  to  remove  the 
bags  he  had  purchased.     The  plaintifi",  however,  told  the  de- 


IN    PERSONALTY — SALES.  265 

fendaut  tliat  he  was  bus}-  that  day,  but  in  a  few  days  wiMild 
send  for  them.  The  plaintitf  a  few  days  after  this  coiivei>a- 
tiou,  to  wit,  on  the  4th  of  February,  gave  Gill  his  note,  which 
was  i)aid  at  maturity,  for  the  price  of  the  meah  On  the  oth 
of  February  the  plaintilf  received  one  hundred  and  forty  of 
the  bags,  and  then  took  no  more,  because  the  defendant  said 
the  rest  could  not  be  removed  until  some  corn,  for  which  the 
bases  were  used  as  a  bulk-head,  had  first  been  taken  out.  Gill 
became  notoriously  insolvent  on  the  7th  of  February,  The 
defendant,  upon  due  demand  made  by  the  plaintiff,  refused  to 
deliver  the  remaining  three  hundred  and  sixty  bags  of  meal, 
and  for  such  refusal  this  action  was  brouglit.  The  sale  to  Gill 
was  for  cash,  and  the  defendant  had  not  been  paid  for  the  meal 
by  him  so  sold. 

The  judgment  in  the  Superior  Court  was  for  the  plaintifi', 
and  the  defendant  seeks  for  a  new  trial. 

The  defendant's  counsel  claim  that  the  title  did  not  pass  to 
Gill,  for  that  the  counting  of  the  bags  was  an  act  remaining 
to  be  done  as  between  the  defendant  and  Gill ;  and  tliey  also 
claim  a  right  to  retain  for  the  unpaid  price.  As  between  the 
defendant  and  Gill,  these  claims  would  perhaps  be  well  founded  ; 
but  we  think  they  cannot  prevail  against  the  [ilaintilf  ujiou 
the  circumstances  disclosed  in  the  finding.  The  defendant 
o-ave  the  plaintiif  authoritv  to  make  immediate  removal  of  the 
five  hundred  bags  without  intimating  that  Gill's  title  was  not 
perfect,  and  thus  left  the  plaintiff  to  pay  the  price  to  Gill.  The 
defendant  also  treated  the  meal  as  belonging  to  the  plaintitV 
by  delivering  one  hundred  and  fort^-  bags,  and  inducing  him 
to  allow  the  residue  to  remain  without  removal,  to  accommo- 
date the  defendant  as  a  bulk-head  for  his  corn,  intimating  still 
no  infirmity  in  the  title  of  Gill. 

"We  think  it  is  too  late  for  the  defendant  to  call  Gill's  title 
in  question  after  having  thus  treated  it  as  perfect  and  com- 
plete. The  Superior  Court  very  properly  regarded  the  deft-'ii- 
dant  as  estopped  from  setting  up  the  claims  now  made.  If 
authority  is  needed  for  a  point  so  plain,  it  may  be  found  in 
Stoveld  r.  Hughes,  14  East,  308, 

But  the  point  most  strenuouslj"  pressed  by  the  defendant's 
counsel  is  this,  that  admitting  Gill's  title  to  have  been  such 


2QQ  ILLUSTRATIVE    CASES 

that  the  defendant  cannot  be  permitted  to  deny  it,  still,  the 
i:)laintiff's  title  is  defective.  lie  bought  of  Gill  five  hundred 
out  of  a  larger  number  of  bags,  and,  with  the  exception  of  the 
hundred  and  forty  delivered,  the  remaining  three  hundred 
and  sixty  were  not  separated  from  the  mass,  and  they  insist 
that  until  such  severance  the  title  did  not  pass ;  that  until 
separation  the  contract  was  merely  executory,  and  that  the 
title  remained  in  Gill,  and  therefore  remained  subject  to  the 
plaintitfs  lien. 

This  claim  comes  with  somewhat  an  ill  grace  from  the 
defendant,  inasmuch  as  it  appears  that  the  separation  would 
have  been  made  on  the  5th  of  February  had  it  not  been  on 
his  request  and  for  his  convenience  postponed  until  the  bags 
should  be  no  longer  needed  as  a  bulk-head  for  his  corn.  But 
the  same  considerations  of  estoppel  which  apply  to  the  other 
branch  of  the  case  do  not  apply  here,  and  we  must  therefore  pro- 
ceed to  examine  with  some  care  the  proposition  of  law  on  which 
the  claim  of  the  defendant  now  under  consideration  is  founded. 

The  Superior  Court  having  found  the  issue  for  the  plaintiff, 
we  cannot  grant  a  new  trial  unless  some  point  of  law  was 
wrongly  decided.  Upon  the  facts  found  we  must  regard  the 
title  as  having  passed  from  Gill  to  the  plaintiff",  unless  the 
law  is  so  that  until  and  without  the  severance  of  the  five 
hundred  bags  from  the  bulk  of  five  or  six  hundred  the  title 
could  not  pass.  The  evidence  detailed  would  warrant  the 
Superior  Court  in  finding  that  the  parties  intended  an  exe- 
cuted sale.  The  price  was  paid,  and  nothing  remained  to  be 
done,  as  between  buyer  and  seller,  to  complete  the  sale.  The 
plaintiff'  was  to  take  his  meal  when  he  wanted  it,  and  as  he 
should  want  it.  :N"otice  of  the  sale  was  given  to  the  defen- 
dant, in  whose  custody  the  property  was,  who  attorned  to  the 
plaintiff. 

The  case  therefore  depends  upon  the  inquiry  whether  it  be, 
as  the  defendant's  counsel  contend,  an  absolute  rule  of  law 
that,  upon  the  sale  of  a  portion  of  a  larger  bulk,  the  contract 
remains  in  judgment  of  law  executory  until  the  portion  sold  is 
severetl  and  separated  for  the  purchaser  from  the  mass.  It 
must  be  conceded  that  this  question  is  not  free  from  difliculty, 
and  that  in  regard  to  it  respectable  authorities  differ. 


IN    PERSONALTY — SALES.  2l)7 

In  regard  to  a  large  class  of  cases  the  law  is  indisputably  as 
the  defendant  claims.  If  I  sell  ten  out  of  a  drove  of  one  hun- 
dred horses,  to  be  selected,  whether  by  myself  or  by  the  vendee, 
no  title  can  pass  until  the  selection  is  made.  This  rule  prevails 
wherever  the  nature  of  the  article  sold  is  such  that  a  selection 
is  required,  whether  expressly  provided  for  or  not  by  the  terms 
of  the  contract.  If  the  articles  differ  from  each  other  in  quan- 
tity or  quality  or  value,  the  necessity  of  a  selection  is  clearly 
implied.  In  all  such  cases  the  subject-matter  of  the  contract 
cannot  be  identified  until  severance,  and  the  severance  is  neces- 
sary in  order  that  the  subject-matter  of  the  contract  may  be 
made  certain  and  definite.    , 

But  where  the  subject-matter  of  the  sale  is  part  of  an  ascer- 
tained mass  of  uniform  quality  and  value,  no  selection  is 
required,  and  in  this  class  of  cases  it  is  affirmed  by  authorities 
of  the  highest  character  that  severance  is  not,  as  matter  of 
law,  necessary  in  order  to  vest  the  legal  title  in  the  vendee  to 
the  part  sold.  The  title  may  and  will  pass  if  such  is  the  clear 
intention  of  the  contracting  parties,  and  if  there  is  no  other 
reason  than  want  of  separation  to  prevent  the  transfer  of  tlie 
title. 

The  leading  case  on  this  subject  in  England  is  that  of 
Whitehouse  d  ciL,  Assignees  of  Townsend,  v.  Frost,  12  East, 
614.  That  case  has  been  the  subject  of  some  adverse  criticism, 
but  in  respect  to  the  point  under  consideration  it  seems  to  us 
to  have  been  properly  decided.  The  sale  to  the  bankrupt  was 
of  ten  tons  of  oil,  in  a  cistern  containing  forty  tons.  There 
was  no  severance  of  the  ten  tons  from  the  remaining  thirty, 
and  the  Court  held  that  the  title  vested  in  the  bankrupt,  so 
that  his  assignee  could  maintain  an  action  of  trover.  The  case 
Avas  elaborately  discussed  at  the  bar  and  by  the  bench,  and 
I3lanc,  J.,  says,  "  Something,  it  is  said,  still  remained  to  be 
done,  namely,  the  measuring  off  the  ten  tons  from  the  rest  of 
the  oil.  Nothing,  however,  remained  to  be  done  to  conqilete 
the  sale.  The  objection  only  applies  where  something  remains 
to  be  done  as  between  buyer  and  seller  for  the  purpose  of  ascer- 
taining either  the  quantity  or  the  price,  neither  of  which  re- 
mained to  be  done  in  this  case." 

Nothing  was  said  by  the  counsel  or  the  Court  in  the  case  of 
Whitehouse  v.  Frost  about  a  tenancy  in  common  being  created 


2G8  ILLUSTRATIVE    CASES 

by  the  contract.  In  a  subsequent  case,  Busk  v.  Davis,  2  Maule 
&  Selw.  397,  the  suggestion  is  made  that  the  sale  was  of  an 
undivided  quaydity  of  the  oil,  as  it  undoubtedly  was  ;  but  though 
the  property  was  intermixed  with  other  property  of  the  same 
kind,  the  tide  was  held  to  be  in  severalty  for  the  practical  pur- 
pose of  being  protected  by  an  action  of  trover,  and  it  is  such  a 
property  as  includes  the  ordinary  risk  of  ownership,  which 
indeed  would  be  true  whether  the  title  were  in  common  or  in 
severalty. 

In  the  case  of  the  oil  it  was  the  intention  of  the  vendors  to 
confer  on  the  vendee  a  perfect  right  at  any  time  to  take  his 
ten  tons.  The  vendee  was  to  have  the  same  right  to  the  ten 
tons  that  the  vendors  retained  in  the  remaining  thirty  tons; 
and  conceding  such  to  have  been  the  contract,  why  should 
the  law  disappoint  that  intention  by  an  arbitrary  rule  of  law 
against  it  ? 

Among  the  earliest  cases  which  we  find  on  this  subject  in 
this  country  is  that  of  Pleasants  v.  Pendleton,  reported  in  6 
Randolph's  Virginia  R.  473.  The  sale  was  of  a  certain  num- 
ber of  barrels  of  flour,  part  of  a  larger  parcel  of  such  barrels, 
of  the  same  brand  and  of  equal  value.  The  contract  was  com- 
plete in  every  respect  except  the  pefiaration  of  the  barrels  sold. 
The  Court  held  that  the  title  passed,  one  of  the  Judges  saying, 
"  These  are  not  portions  of  a  larger  mass  to  be  separated  by 
weighing  and  measuring,  but  consist  of  divers  separate  and  in- 
dividual things,  all  precisely  of  the  same  kind  and  value,  mixed 
with  other  separate  and  individual  things  of  the  same  kind  and 
between  which  there  is  no  diiference." 

The  leading  case  on  this  subject  in  the  State  of  Kew  York 
is  that  of  Kimberly  v.  Patchin.  The  matter  is  elaborately 
discussed  and  the  conclusion  is  well  expressed  in  the  reporter's 
syllabus:  "Upon  a  sale  of  a  specified  quantity  of  grain  its 
separation  from  a  mass  indistinguishable  in  quality  or  value 
with  which  it  is  included  is  not  necessary  to  pass  the  title 
when  the  intetition  to  do  so  is  otherwise  clearly  manifested  :" 
19  New  York  R.  330.  Judge  Comstock,  in  giving  the  opinion 
of  the  Court,  remarks :  "  It  is  not  necessary  to  decide  whether 
the  parties  to  the  sale  became  tenants  in  common.  If  a  tenancy 
in  common  arises  in  such  cases,  it  must  be  with  some  peculiar 
incident  not  usually  belonging  to  that  species  of  ownership." 


IN    PERSONALTY' — SALES.  209 

In  Waldron  v.  Chase,  37  Maine  R.  414,  it  was  deciilecl  that 
where  the  owner  of  a  large  quantity  of  corn  in  hulk  sells  a 
certain  number  of  bushels  therefrom  and  receives  his  pay,  and 
the  vendee  takes  away  a  part,  the  property  in  the  part  sold 
vests  in  the  vendee,  although  it  is  not  measured  or  separated 
from  the  heap. 

In  Peimsylvania  (7  Pcnn.  S.  11.  140,  Hutchinson  v.  Hunter) 
and  in  Ohio  (7  Ohio,  407,  Woods  r.  McGee)  the  Courts  seem 
to  hold  that  severance  from  the  mass  is  absolutely  essential  to 
the  vesting  of  title  in  the  vendee.  The  opinion  expressed  in 
those  cases  is  strongly  in  that  direction,  and  yet  the  i-ascs  them- 
selves would  be  decided  by  us  jirecisely  as  they  are  decided  by 
those  Courts,  for  in  the  Pennsylvania  case  it  appears  that  the 
subject  of  sale  was  part  of  a  bulk  of  unequal  quantities  and 
values,  and  in  the  Ohio  case  the  barrels  of  Hour  composing  the 
bulk  varied  in  value  from  twenty  five  to  fifty  cents  i)er  barrel. 

If  in  the  case  we  have  under  our  consideration  any  such  fact 
appeared,  we  should  decide  in  favor  of  the  defendant,  for  our 
decision  is  based  upon  the  fact  that  the  bags  of  meal  do  not 
appear  to  have  been  in  any  respect  difiercnt  one  from  another. 

The  subject  we  arc  discussing  seems  to  have  perplexed  the 
Courts  of  Massachusetts.  In  the  case  of  Scudder  v.  AVorster, 
11  Cusliing,  573,  severance  seems  to  be  regarded  by  the  Court 
as  essential  in  cases  of  this  kind  to  the  transfer  of  the  title,  and 
yet  in  a  somewhat  more  recent  case  of  Weld  v.  Cutler,  2  Gray, 
195,  it  was  held  that  upon  a  mortgage  of  a  portion  of  a  larger 
mass  of  coal,  the  title  passed  to  the  mortgagee  as  against  an 
assignee  in  bankruptcy  of  the  mortgagor  without  and  before 
separation,  where  the  whole  mass  was  put  into  the  possession 
of  the  mortgagee  to  enable  him  to  separate  his  part  from  the 
bulk.  Such  a  delivery  is  so  decided  evidence  of  an  executed 
mortgage  as  to  leave  no  doubt  of  the  intention  of  the  parties, 
and  yet  until  the  separation  is  made  that  act  remains  to  be  done, 
and  the  decision  recognizes  the  title  of  the  mortgagee  as  valid 
and  executed  in  him  prior  to  the  severance  and  while  the  pro- 
perty is  intermixed  and  in  common,  and  thus  seems  to  recog- 
nize the  doctrine  established  in  Virginia,  New  York,  and  Maine, 
that  such  a  title  is  possible  in  law.  If  it  be  in  law  possible, 
then  its  existence  in  a  particular  case  must  depend  upon  the 
clearly  expressed  wish  and  intention  of  the  parties. 


270  ILLUSTRATIVE    CASES 

In  view  of  the  authorities  which  we  have  commented  upon 
and  of  the  reason  of  the  thing,  we  have  come  to  the  conclusion 
■ — 1st,  that  there  is  no  legal  har  which  prevents  the  transfer  of 
the  title  until  actual  separation  of  the  five  hundred  hags  from 
the  mass ;  and  2d,  that  the  facts  in  the  case  before  us  warrant 
the  Superior  Court  in  finding  that  the  parties  intended  that 
the  title  should  pass.  The  fiict  that  the  contract  was  executed 
on  the  plaintififs  part  by  the  execution  and  delivery  of  his  note, 
since  paid,  for  the  price,  is  very  significant.  There  is  no  in- 
dication in  any  part  of  the  case  of  anything  executory  remain- 
ing to  be  done  by  Gill.  If  the  meal  had  been  destroyed  by  fire 
and  Gill  had  remained  solvent,  we  think  the  plaintiff  could  not 
have  successfully  sued  Gill  for  non-delivery  as  upon  an  exe- 
cutory agreement  to  count  out,  separate  and  deliver  the  five 
hundred  bags.  Gill's  answer  would  be  that  he  had  done  every- 
thing that  he  had  contracted  to  do — everything  which  it  was 
expected  he  should  do.  He  had  placed  the  property  within 
the  control  of  the  plaintiff",  who  had  assumed  the  control  by 
taking  away  a  part  and  allowing  the  residue  to  remain  in  the 
schooner  for  the  defendant's  convenience. 

The  title  then,  we  think,  passed,  whether  in  severalty  or  in 
common  it  is  unnecessar}'  to  decide,  for  there  are  counts  in  the 
plaintiff's  declaration  adapted  to  either  alternative.  If  there 
were  evidence  by  express  words  or  by  fair  inference  of  an  in- 
tention on  the  part  of  Gill  to  confer,  and  on  the  part  of  the 
plaintifi'  to  take,  a  joint  title  in  the  mass  of  the  bags  in  the  pro- 
portion of  five  hundred  to  the  whole  number,  the  case  would  be 
entirely  free  from  the  embarrassments  which  have  been  under 
consideration.  It  is,  of  course,  competent  for  the  owner  of  six 
hundred  bags  of  meal  of  equal  quality  and  value  to  sell  five- 
sixths  of  them,  and  to  transfer  the  title  to  the  five-sixths  with- 
out severance.  In  such  case  the  ultimate  severance,  if  it  ever 
takes  place,  is  not  as  between  the  parties  as  vendor  and  vendee, 
but  between  them  as  tenants  in  common  after  the  full  comple- 
tion of  the  sale.  In  such  case  after  the  sale  the  parties  are 
tenants  in  common,  with  all  the  incidents  of  that  relation. 

But  there  is  no  evidence  that  Gill  and  the  plaintiff  intended 
a  tenancy  in  common,  unless  such  a  relation  is  the  necessary 
consequence  of  holding  that  the  title  passes  while  the  property 
remains  intermixed  and  unsenarated.     But  if  the  intention  of 


IN    PERSONALTY — SALES,  271 

the  parties  is  clear  that  the  title  sliall  be  transferred,  we  sliDuld 
liold  that  such  intention  must  be  carried  into  eflect,  and  if  tlie 
only  niodeof  accomplisliiiig  the  purjio.-cofthe  parties  is  through 
the  medium  of  a  tenancy  in  common,  then  sucli  tenancy  is  cre- 
ated. The  authorities,  however,  do  recognize  a  species  of  title 
in  severalty  to  a  definite  portion  of  jiropcrty  remaining  inter- 
mixed M'ith  other  property  of  the  same  identical  kind.  Thus 
in  Gardner  v.  ]Jutch,  0  Mass.  427,  the  action  was  replevin  for 
seventy-six  bags  of  eofiee  which  were  lying  in  common  with 
other  bags  belonging  to  third  [)ersons.  These  seventy-six  bags 
were  not  distinguished  by  any  particular  marks,  or  by  a  sepa- 
ration of  them  in  any  manner  from  the  rest  of  the  eofiee. 
The  Court  says  :  "  If  the  plaintifi"  was  in  fact  tenant  in  com- 
mon, he  could  not  maintain  replevin  ;  but  lie  was  not  tenant  in 
common.  Although  the  bags  belonging  to  him  had  no  distin- 
guishing marks,  he  might  have  taken  the  number  of  bags  and 
the  quantity  of  eofiee  to  which  he  was  entitled  by  his  own 
selection  while  they  remained  in  the  hands  of  Welman  and 
Ropes."  If  then  the  title  of  the  plaintifi'  was  in  a  sense  com- 
mon, yet  it  was  only  quasi  joint ;  a  temporary  community  only, 
was  contemplated.  The  plaintifi*  was  entitled  to  take  imme- 
diate possession  of  his  portion  without  let  or  hindrance  from 
his  companion  in  the  ownership  of  the  mass.  In  the  case  of 
"Whitehouse  v.  Frost  it  was  held  that  this  title  is  such  that  the 
plaintiff  might  maintain  trover  for  the  conversion  of  his  pro- 
perty against  his  companion  upon  proof  of  mere  demand  and 
refusal  to  deliver  to  the  plaintiff  his  share,  which  could  not  be 
done  in  ordinary  cases  of  joint  tenancy. 
A  new  trial  is  not  advised. 

Pleasants  v.  Pendleton,  G  Rand.  Benjamin  on  Sales  (1884),  ?  470  ; 

(Va.)47:i-,  Mackellar  r.  Pillsbury,  48  Minn. 

Kiinberly  v.  Patchin,   10   X.  Y.  39G. 
330; 

Russell  I".  Carrington,  42  X.  Y.  Contra- 
ils ;  Benjamin  on  Sales,  page  432,  and 

Beck  V.  Sheldon,  48  N.  Y.  3G5  ;  note  ; 

Ropes  V.  Lane,  9  Allen,  502  ;  Woods  v.  McGce,  7  Ohio,  2  pt, 

AV'ebster  v.   Anderson,  42  Mich.  127  ; 

554 ;  Commercial    National    Bank    v, 

Jackson  r.  Anderson,  4  Taunt.  24  ;  Gillette,  'JO  lud.  2G8. 


272  ILLUSTRATIVE    CASES 


Certain   acts    to    be   performed   by  the   purchaser. 

Sedgwick  v.  Cottingiiam. 

Supreme  Court  of  Iowa,  1880. 

64  Iowa,  512. 

Seevers,  J.     The  following  facts  were  found  by  the  Court: 

1st.  That  in  the  n)onth  of  July,  1878,  the  plaintilf,  Sedg- 
wick, resided  in  Tortlandville,  in  the  county  of  Plymouth,  and 
State  of  Iowa,  and  that  he  was  then  and  there  engaged  in  the 
purchase  and  sale  of  grain. 

2d.  That  the  defendant,  Cottingham,  was  at  said  time  a 
resident  of  Benton,  in  the  State  of  Wisconsin,  and  that  he 
was  then  and  there  enorao-ed  in  the  milling  business. 

3d.  That  the  plaintilf  and  defendant,  on  or  about  the  8th 
day  of  July,  1878,  made  an  agreement  that  the  plaintiff  should 
ship  to  the  defendant  by  rail  from  Portland ville,  Iowa,  viz  , 
the  Illinois  Central  Railroad,  one  carload  of  No.  1  hard 
wheat,  to  be  billed  to  Cairo,  111.,  to  be  milled  by  defendant 
in  transit  at  Council  Hill,  111, ;  that  defendant  was  to  take 
said  wheat  from  the  car  at  said  Council  Hill,  haul  the  same  to 
his  mill  at  Benton,  Wis.,  ten  miles  distant  from  Council  Hill, 
and  pay  for  said  wheat  at  the  ])rice  of  $1  per  bushel,  less 
freight,  as  soon  as  the  wheat  should  be  weisjhed  on  defendant's 
scales  at  his  said  mill. 

4th.  That  by  the  terms  of  this  agreement  under  which  the 
said  wheat  was  shipped,  the  same  was  to  he  delivered  by  the 
plaintiff,  Sedgwick,  to  the  defendant,  Cottingham,  on  the  track 
at  Council  Hill,  in  Jo  Daviess  County,  111. 

5th.  That  the  plaintift,  Sedgwick,  on  the  9th  day  of  July, 
1878,  shipped  to  the  defendant,  under  the  agreement  hereto- 
fore formed,  one  car  iSo.  1  liard  wheat  from  Portlandville, 
Iowa,  to  Council  Hill,  111.,  which  said  car  contained  400 
bushels. 

6th.  That  the  freight  on  said  car  from  Portlandville  down  to 

Council  Hill,  111.,  was  $ . 

7th.  That  said  car  arrived  at.  Council  Hill,  111.,  at  11  A.  M., 


IN    PERSONALTY  — SALES.  273 

July  11,  1878,  in  good  condition,  and  witli  tlio  ^vlleat  therein, 
400  bushels  in  amount,  in  good  condition; 

8tli.  That  on  the  arrival  of  t^aid  car  at  said  Council  Hill, 
111.,  July  11,  1878,  the  same  was  immediately  side-tracked 
at  a  place  where  the  wheat  could  have  been  taken  therefrom, 
but  at  a  place  wliere  it  was  unusual  to  side-track  same  and 
take  grain  therefrom,  and  at  a  place  where  grain  could  not 
have  been  removed  therefrom  with  reasonable  convenience. 

9th.  That  no  special  reason  is  shown  to  prevent  the  placing 
of  the  car  at  a  usual  and  reasonable  place  for  unloading,  nor  is 
any  such  reason  shown  for  permitting  same  to  remain  during 
the  night  where  it  was  found  side-tracked. 

10th.  That  said  car  could,  on  demand,  and  within  five 
minutes  after  demand,  on  July  11th,  have  been  placed  in  a 
suitable  and  convenient  place  for  the  removal  of  the  wheat 
therefrom. 

11th.  That  at  the  time  of  arrival  of  the  car  at  Council 
Hill,  111.,  the  following  rule  of  the  Illinois  Central  Eailroad 
Company  was  in  force  at  that  place,  to  wit: — 

'•  LOADING    AND   UNLOADING. 

"  All  chartered  cars  or  cars  loaded  with  lumber,  grain,  or 
other  property,  which  is  to  be  unloaded  by  owners  or  con- 
siijtiee,  whether  at  side-track  or  regular  stations,  must  be 
unloaded  within  twenty-four  hours  after  their  arrival  at  their 
place  of  destination,  or  a  charge  of  live  dollare  per  day  will  be 
made  for  such  car  after  that  time  till  unloaded." 

12th.  That  it  was  then  the  custom  of  the  company,  by  its 
agent  at  Council  Hill,  111.,  always  to  give  notice  to  parties 
residing  a  distance  from  the  station  of  the  arrival  of  freight  or 
goods  consigned  to  them. 

IStli.  That  the  agent  of  the  Illinois  Central  Eailroad  Com- 
pany, on  the  same  day  of  the  arrival  of  the  car  containing  the 
wheat,  wrote  and  mailed  notice  to  the  defendant  of  its  arrival 
at  Council  Hill,  which  notice  reached  the  defendant  in  the  then 
usual  course  of  mail  at  11  A.  M.,  July  12,  1878;  that  said 
notice  was  the  first  the  defendant  had  of  the  arrival  of  the 
said  wheat  or  car,  and  that  he  immediately,  on  the  receipt 
thereof,  sent  men  and  teams  to  get  said  wheat. 


274  ILLUSTRATIVE    CASES 

14tli.  That  at  about  12  P.  M.,  July  11,  1878,  the  car  con- 
taining said  wheat  %vas  washed  from  the  side-track  by  an  un- 
usual and  extraordinary  flow  of  water,  and  said  wheat,  by 
reason  thereof,  was  completely  and  wholly  lost. 

15tli.  That  said  car  had  not,  when  the  same  was  lost,  been 
delivered  to  the  defendant,  Cottingham,  or  by  him  been  re- 
ceived. 

The  important  inquiry  is  whether  there  was  a  delivery  of 
the  wheat  when  it  was  placed  on  the  side-track  at  Council 
Hill,  for,  under  the  contract,  that  was  the  place  of  delivery. 

If  it  be  conceded  the  railroad  company  was  the  agent  of 
the  plaintiff  up  to  the  time  the  wheat  arrived  at  the  place 
of  destination,  it  does  not  follow  this  relation  continued  ai'ter 
that  time. 

When  the  wheat  arrived  at  Council  Hill,  the  contract  on 
plaintiff's  part  ^^as  completed.  The  defendant  should  have 
been  there  to  receive  it.  This  duty  necessarily  followed. 
Not  being  there,  the  railroad  company  became  his  agent, 
because  the  plaintiff  had  done  all  he  agreed  to  do.  This  being 
so,  the  plaintiff  is  not  responsible  for  what  was  done  by  the 
defendant's  agent.  It  is,  therefore,  immaterial  whether  the 
car  was  placed  at  a  proper  and  convenient  place  for  unloading 
or  not. 

But  it  is  urged  the  defendant  was  not  to  pay  for  the  wheat 
until  it  had  been  weighed  on  the  defendant's  scales,  which 
were  ten  miles  distant  from  the  place  of  delivery.  Suppose 
the  defendant  had  taken  the  wheat  into  his  custody  by  placing 
it  in  wagons,  for  the  purpose  of  transporting  it  to  his  mill  and 
scales,  and  it  had  been  destroyed,  without  his  fault  or  negli- 
gence, before  reaching  there,  upon  whom  should  the  loss  fall? 
Most  clearly,  we  think,  upon  the  defendant.  Therefore,  the 
weighing  is  not  a  pivotal  matter.  It  was  to  be  done  by  the 
defendant  after  he  had  received  it  into  his  actual  custody,  and 
after  it  had  been  delivered  at  the  place  fixed  by  the  contract. 
A  careful  consideration  of  the  third  finding  of  fact  will  demon- 
strate, we  think,  that  the  weighing  has  reference  only  to  the 
time  of  payment,  and  whether  there  had  been  a  delivery  or 
not  is  in  no  manner  controlled  or  affected  thereby. 

As  it  became  impossible  to  weigh  the  wheat  without  the  fault 


IN   PERSONALTY — SALES.  275 

or  negligence  of  the  plaiiitifl",  and  lie  had  fully  com]prR-<l  with 
the  contract  as  to  the  delivery,  he  should  recover  therefor. 
Reversed. 

DARLIXGTOX,  P.  P.,  77  ;  Baker  v.  Guinn,  23  S.  W.  G<i4  ; 

2  Sch.  on  Per.  Property,  252  ;  Foley  r.  Fclratli,  13  So.  Rep.  4P.j  ; 

Chamblee  v.  McKenzie,  31  Ark.  lUigg  i-.  iMiiiett,  11  East,  210; 

155  ;  Swanwick  v.  Sothern, 9  Ad.  &  El., 

Shephard  v.  Lynch,  20  Kan.  377  ;  805  ;  30  Eiig.  Cum.  Law,  321. 


SALE  OX  CREDIT. 

Thompson  v.  Wedge. 

Supreme  Court  of  Wisconsin,  1880. 

50  Wis.  042. 

Plaintiff  sold  to  defendant  at  auction  a  cow  and  calf.  The 
defendant  not  having  enough  money  with  him  to  pay  therefor^ 
was  allowed  by  pluintift"  to  take  the  property  home  under  a 
promise  that  he  would  pay  the  balance  in  a  few  days ;  but  upon 
his  failure  to  do  so,  plaintiff  brings  an  action  of  replevin. 

Lyon,  J.  The  plaintiff  delivered  the  property  in  contro- 
versy to  the  defendant  unconditionally,  and  gave  him  credit  for 
the  price.  Tie  waived  the  security  required  by  the  terms  of 
the  auction  sale,  by  making  the  delivery  without  requiring  it. 
He  did  not  expressly  reserve  to  himself  the  title  to  the  pro- 
perty until  the  purcliase-money  should  be  paid,  and  there  is 
nothing  in  the  evidence  tending  to  raise  a  presumption  that  he 
intended  to  do  so.  Xcither  is  there  any  ground  for  claiming 
that  the  defendant  obtained  delivery  of  the  property  by  fraud. 
Thus  we  have  here  the  simple  case  of  a  sale  of  property  on 
credit,  and  an  absolute  delivery  thereof  to  the  purchaser.  Such 
sale  and  delivery  passes  the  title,  and  it  is  not  divested  merely 
because  the  purchaser  fails  to  pay  for  the  property  at  the  stipu- 
lated time.  If  authorities  are  required  to  pro[iositions  so  plain 
and  well  established,  the  cases  cited  in  the  brief  of  counsel  fur 


276  ILLUSTRATIVE   CASES 

defendant,  and  many  of  those  cited  hy  counsel  for  plaintiff, 
abundantly  sustain  the  doctrine.  To  these  may  be  added  the 
late  case  in  this  Court  of  The  Singer  Manuf  g  Co.  v.  Sanimons, 
49  Wis.  316.  That  ^vas  a  stronger  case  for  the  plaintitf  than 
this,  yet  we  held  that  the  title  passed.  None  of  the  cases  in 
this  Court,  cited  to  show  that  the  title  to  the  property  here  in 
controversy  remained  in  the  plaintiff,  meet  the  conditions  of 
this  case,  for  in  none  of  them  was  credit  given  for  the  price, 
and  an  unqualified  delivery  of  the  property  made  to  the  pur- 
chaser. 

We  think  the  ruling  of  the  learned  county  Judge,  that  the 
title  to  the  cow  and  calf  passed  to  the  defendant  by  the  deliv- 
ery, was  correct.     We  must  therefore  affirm  the  judgment. 

By  the  Court.     Judgment  affirmed. 


CONDITION  SUBSEQUENT. 

a. 
"  Sale   or    Return." 

Dearborn  v.  Turner. 

Supreme  Judicial  Court  of  Maine,  1836. 

16  Maine,  17. 

Weston,  C.  J.  The  plaintiff  delivered  to  Nason  a  cow  and 
a  calf,  for  which  he  took  his  written  promise  to  return  the 
same  cow  within  a  year,  with  a  calf  by  her  side,  or  to  pay 
twenty-two  dollars  and  fifty  cents.  We  are  very  clear  that  the 
security  of  the  plaintiff  vested  in  contract;  and  that  Nason, 
having  the  alternative  to  return  or  pay,  the  property  passed  to 
him,  and  he  was  at  liberty  to  sell  the  cow.  Tibbets  v.  Towle, 
3  Fairf.  341,  was  a  very  different  case.  There  the  plaintiff' ex- 
pressly reserved  to  himself  the  title  to  the  oxen  until  jiaid  for. 
The  case  of    Hurd  v.  West,  7  Cowen,  752,  decides  expressly 


IN    PERSONALTY — SALES.  277 

that  where  an  alternative  exists  the  title  to  the  property,  in  a 
case  like  this,  is  transferred  upon  tlie  delivery. 
Plaintitt"  nonsuit. 

Ilurd  I'.  W(,st,  7  Cowen,  752  ;  Hull  v.  iEtna  M'f 'g  Co.,  30  Iowa, 

Stevetis  r.  Cunningham,  .'5  Allen,  215  ; 
4'Jl  ;  Spicklcr  r.  Marsh,  3G  Md.  222  ; 

Crocker   v.    Gulliger,   44  Maine,       Jones  v.  Wright,  71  111.  Gl ; 
491  ;  Hay  v.  Thompson.  12  Cush.  281  ; 

McKinncy  i\  Bradlce,  117  Mass.        Moss  r.  Sweet,  40  Q.  B.,  71  Eng. 

321  ;  Com.  l.aw,  403; 

Dewey  v.  Eric  Borough,  14  Pa.  St.        Ilumpliries  i-.  Carvalho,  16  East, 

211 ;  45. 


b. 

Manner   of  Payment. 

Smith  v.  Dallas. 

Supreme  Court  of  Indiana,  1871. 

35  Ind.  255. 

Downey,  C.  J.  Smith  and  Hayes  sued  Dallas  and  Dallas  on 
a  written  contract  of  November  17,  1864,  by  which  the  de- 
fendants acknowledged  that  they  had  received  of  the  plaintifts 
three  hundred  and  ninety  sheep,  to  keep  on  the  following 
terms:  they  agreed  to  give  annually  one  and  a  half  pounds  of 
wool  per  head,  sheared /?'om  said  sheq),  well  washed  on  the 
sheep,  put  up  in  good  merchantable  order,  and  delivered  by  the 
loth  day  of  June,  to  the  plaintifi's  or  their  assigns,  at  Rock- 
ville.  Park  County,  Indiana.  And  on  or  before  the  1st  day  of 
July,  1868,  they  promised  to  pay  to  the  plaintiffs,  or  order, 
four  dollars  and  fifty  cents  per  head  for  the  sheep,  or  if  they 
paid  the  plaintiffs  the  above  price  between  the  delivery  of  the 
annual  amount  of  wool  and  the  1st  day  of  July  following,  of 
any  year,  and  expressed  the  money  to  them  at  Iberia,  Morrow 
County,  Ohio,  then  the  agreement  was  to  be  void.  It  was 
further  stipulated  that  if  the  annual  amount  of  wool  was  not 
delivered,  the  principal  sum,  as  well  as  the  wool,  should  be 
due,  at  the  end  of  the  year ;  and  that  they  would  j)ay  the  above 
amoujit  of  wool  yearly  until  the  contract  was  fulfilled,  etc. 
19 


278  ILLUSTRATIVE    CASES 

The  plaintiffs  allege  that  the  defendants  delivered  to  them 
five  hundred  and  ninety-seven  pounds  of  -wool  on  the  contract, 
August  24,  1865,  which  was  the  amount,  and  something  more 
than  the  amount,  due  on  the  loth  day  of  June,  1865  ;  that  the 
defendants  failed  to  deliver  the  five  hundred  and  seventy-three 
pounds  of  wool  due  on  the  15th  day  of  June,  1866,  and  five 
hundred  and  eighty-five  pounds  due  June  15,  1867,  thereby 
rendering  the  contract  both  as  to  principal  and  wool  due, 
stating  values  and  amounts ;  wherefore,  etc.  The  defendants 
answered : — 

1.  They  admit  the  execution  of  the  agreement,  but  say  that 
at  the  time  they  received  the  sheep  they  were  aftected  with  a 
contagious  disease  ;  one-half  of  them  died  soon  after  they  were 
received,  and  before  shearing  time,  15th  of  June,  1865,  and  the 
residue  before  the  shearing  season  in  the  year  1866,  all  from 
said  contagious  disease,  without  any  fault  of  the  defendants. 
They  allege  the  delivery  of  the  five  hundred  and  ninety-seven 
pounds  of  wool,  which  they  allege  was  all  the  wool  they  ever 
sheared  from  the  sheep,  and  more  than  one  and  a  half  pounds 
per  head  ;  wherefore,  etc. 

2.  That  the  plaintiffs,  at  the  time  of  executing  the  agree- 
ment, represented  themselves  as  dealers  in  sheep  and  well 
acquainted  with  their  diseases:  thnt  they  had  imjiorted  the 
sheep  from  Ohio ;  that  they  were  sound,  healthy  and  free  from 
all  disease ;  that  the  defendants  were  ignorant  of  the  nature  of 
sheep  and  their  diseases,  and  relied  on  the  plaintiffs'  represen- 
tations, which  the  plaintiffs  knew  ;  that  the  sheep  were  fatally 
unsound  when  received,  by  reason  whereof  they  became  en- 
tirely worthless,  sickened  and  died  long  before  the  commence- 
ment of  this  suit ;  wherefore,  etc. 

3.  The  same  representations,  etc.,  as  in  the  preceding  para- 
graph, and  that  the  defendants  held  fifty-five  other  sheep  with 
which  they  desired  the  purchased  sheep  to  run,  which  the 
plaintiffs  knew  ;  that  before  they  knew  that  said  sheep  so  pur- 
chased from  the  plaintiffs  were  diseased,  tlieir  other  sheep, 
from  running  with  them,  became  diseased,  and  they  too  died  ; 
that  they  expended  one  thousand  dollars  in  doctoring,  feeding, 
and  taking  care  of  them,  and  have  been  damaged  four  thousand 


IN    PERSONALTY — SALES.  270 

dollars,  which   they  set  np  as  a  counter-claim,  and  a^^k  judg- 
iiicut  tor  one  thousand  dollars. 

4.  That  the  iilaintitfs  represented  that  they  were  dealers  in 
sheep  and  ac(|uainted  with  their  diseases,  and  when  they  sold 
said  sheep  to  the  defendants  represented  them  to  he  sound  and 
free  from  disease,  and  warninted  them  to  be  sound  and  healthy; 
that  they  were  unsound  and  diseased  with  a  fatal  and  deadly 
contagion,  of  which  the  defendants  were  ignorant,  which  ren- 
dered them  valueless  and  caused  them  to  die  ;  that  said  war- 
ranty was  untrue,  false,  and  fraudulent,  and  made  with  intent 
to  and  did  mislead  and  (U-fraud  the  deiendants,  and  induced 
them  to  enter  ijito  the  contract  sued  on  ;  that  the  defendants 
refused  to  take  the  sheep  without  a  warranty  of  their  sound- 
ness;  that  the  plaintifis  then  warranted  them  to  be  sound,  to 
mislead  and  defraud  the  defendants,  and  induce  them  to  pur- 
chase the  shec[) ;  that  the  warranty  was  false  and  fraudulent, 
and  the  defendants  were  deceived  thereby  and  induced  to  enter 
into  the  contract;  that  when  the  contract  was  executed  there 
was  an  understanding  and  agreement  between  the  parties 
thereto  that  it  should  not  embrace  the  whole  of  the  terms  of 
the  agreement;  that  the  warranty  should  stand  and  be  binding, 
but  should  not  bo  inserted  in  the  wiiting,  but  should  remain  a 
distinct  part  of  the  whole  agreement,  supplementary  to  the 
written  airrecmcnt,  to  dclVaud  the  defendants ;  and  that  they 
have  been  daninged  tliereby  to  the  amount  of  four  thousand 
dollars;  wherefore,  etc. 

5.  Payment. 

The  plaintiffs  demurred  to  the  first  and  fourth  paragraphs  of 
the  answer,  which  demurrer  was  overruled,  and  they  excepted. 
There  was  then  a  re[ily  by  general  denial  of  the  whole  answer. 
Trial  by  jury;  verdict  for  the  plaintiifs  for  two  hundred  and 
fifty  dollars.     Special  findings  to  questions,  as  follows  : — 

"  1.  Were  the  sheep  sound  at  the  time  of  the  sale  to  the 
defendants?"     Ans.  "  We  think  they  were  not." 

"  2.  At  the  time  of  sueh  sale,  did  the  agent  of  the  plaintifis, 
for  the  purpose  of  defrauding  the  defendants,  warrant  the  sheep 
sound?"     Ans.  "  We  think  he  did  not." 

"3.  Did  the  agent  of  the  plaintiffs  make  a  warranty  of  the 


280  ILLUSTRATIVE   CASES 

soundness  of  the  sheep  prior  to  executing  the  contract?"  Ans. 
"  We  think  he  did." 

"4.  Were  the  defendants  prevented  from  delivering  the  wool 
specified  in  the  contract  in  the  years  1866  and  1867,  or  either 
of  tliem,  from  any  contagious  disease  in  the  sheep  at  the  time 
of  the  purchase  by  the  defendants?"  Ans.  "We  think  they 
■were." 

There  w  as  a  motion  for  a  new  trial  for  eleven  reasons,  which 
was  overruled. 

Three  specifications  are  made  in  the  assignment  of  errors. 
1.  The  overruling  of  the  demurrer  to  the  first  paragraph  of  the 
answer.  2.  The  overruling  of  the  demurrer  to  the  fourth 
paragraph  of  the  answer.  3.  The  refusal  to  grant  a  new  trial. 

1.  The  first  question  is  as  co  the  overruling  of  the  demurrer 
to  the  first  paragraph  of  the  answer.  The  defendants  insist 
that  as  the  suit  was  commenced  on  the  24th  of  July,  1867,  be- 
fore the  time  when  the  sheep  were  to  be  paid  for,  which  was 
to  be  done  on  the  1st  day  of  July,  1868,  if  the  sheep  had  died 
from  disease  without  their  fault,  before  the  time  when  the 
payment  of  wool  was  to  be  made  in  June,  1866,  as  the  wool 
was  to  be  shorn  from  the  same  sheep  sold,  they  were  excused 
from  the  delivery  of  the  wool  by  the  death  of  the  sheep,  which 
rendered  it  impossible  to  perform  that  part  of  their  contract: 
and  that,  therefore,  the  plaintiffs  cannot  claim  that  the  princi- 
pal sum  became  due  by  the  failure  to  deliver  the  wool. 

We  think  this  position  is  wholly  untenable.  The  defen- 
dants, by  delivering  the  wool  each  year  as  agreed,  might  have 
had  time  to  pay  for  the  sheep  till  July  1,  1868.  But  if  they 
failed  to  deliver  the  wool  as  it  became  due,  they  then  became 
liable  to  pay  for  the  sheep  and  for  the  wool  which  they  had  so 
failed  to  deliver,  and  both  might  be  sued  for  at  any  time  after 
such  failure.  The  property  in  the  sheep  passed  by  the  delivery 
under  the  contract  to  the  defendants,  and  they  were  thence- 
forth at  their  risk.  That  they  died  from  disease  is  no  better 
reason  for  not  complying  with  the  contract  than  if  they  had 
been  killed,  or  had  strayed  away  and  been  lost.  The  plaintiffs 
were  not  insurers  of  their  continued  existence.  The  parties, 
b}'  the  contract,  provided  for  a  failure  to  deliver  the  wool,  by 
makino;  the  defendants  liable  for  the  value  of  it.     This  must 


IN   PERSONALTY — SALES.  281 

be  construed  to  cover  a  iailure  from  whatever  cause  it  may 
have  originated.  There  is  a  distinction  between  a  contract  to 
do  a  thing  which  is  possible  in  itself,  and  one  whereby  the 
party  engages  to  do  something  which  is  absolutely  impossible  ; 
for  in  the  former  case  the  contract  subsists,  notwithstanding  it 
is  beyond  the  power  of  the  party  to  perform  it,  it  being  deemed 
to  be  his  own  fault  and  folly  that  he  did  not  tliereby  exi)rcssly 
provide  against  contingencies  and  exempt  himself  from  respon- 
sibility in  certain  events.  And,  therefore,  in  such  a  case,  the 
performance  is  not  excused  by  the  occurrence  of  an  inevitable 
accident  or  other  contingency,  although  it  was  not  foreseen  by, 
or  within  the  control  of,  the  party :  Chitty  on  Con.  803.  See, 
also.  Wood  V.  Long,  28  Ind.  314. 

The  demurrer  to  the  first  paragraph  of  the  answer  should 
have  been  sustained.  The  instruction  given  by  the  Court 
based  on  the  same  view  of  the  law  was  not  correct,  and  should 
not  have  been  given. 

2.  The  next  question  relates  to  the  fourth  paragrajjh  of  the 
answer.  We  do  not  see  the  necessity  or  propriety  of  blending 
fraud  and  warranty  as  is  done  in  this  paragraph.  But  regard- 
ins:  it  as  a  defence  based  on  the  false  and  fraudulent  represen- 
tations,  we  are  inclined  to  hold  it  to  be  good.  If  we  were  com- 
pelled to  regard  it  as  setting  up  a  warranty,  made  by  parol  at 
the  time  of  entering  into  the  written  contract,  we  should  be 
conifielled  to  Iiold  it  bad.  The  parties  could  not,  by  a  [larol 
agreement  that  a  part  of  their  contract  should  not  be  reduced 
to  writing,  change  the  rule  of  law  which  excludes  parol  evi- 
dence in  such  a  case,  on  account  of  its  tendency  to  vary  the 
written  contract. 

Several  questions  are  argued  and  presented  for  decision  aris- 
ing under  the  motion  for  a  new  trial  and  the  action  of  the 
Court  in  overruling  it. 

3.  The  Court  allowed  the  defendants  to  introduce  evidence 
on  the  trial,  that  it  was  agreed,  at  the  time  of  making  the  con- 
tract for  the  purchase  of  the  sheep,  that  they  might  sublet  as 
many  as  they  wanted  to  of  the  sheep,  to  responsible  persons, 
upon  the  same  terms  of  their  contract  with  the  plaintiffs,  and 
when  so  sublet  they  were  to  be  credited  for  that  number;  and 
that  accordingly  they  did  sublet  some  of  the  sheep  to  other  per- 


282  ILLUSTRATIVE    CASES 

sons,  etc.  On  this  subject  the  Court  instructed  the  jury  that  if 
the  plaintifi's  authorized  the  defendants  to  bail  out  any  portion 
of  the  sheep,  on  tlie  same  terms  on  which  the  defendants  took 
them  from  plaintifis,  and  the  defendants  did  so  bail  out  a  por- 
tion of  said  sheep,  and  the  phiintitis  accepted  the  said  baihiient 
contract  in  part  discharge  of  defendants'  contract,  then  the 
jury,  if  they  find  for  the  plaintifis,  must  allow  the  defendants 
a  credit  on  their  contract  in  a  sum  equal  to  the  amount  of  the 
said  bailment  contract.  There  was  an  exception  taken  to  the 
ruling  of  the  Court  in  admitting  this  evidence  and  giving  this 
direction  to  the  jury. 

There  was  nothing  in  the  pleadings  to  warrant  this  evidence, 
and  it  was  inadmissible,  because  it  was  at  variance  wnth  the 
Avritten  contract:  McClure  v.  JeftVey,  8  Ind.  79 ;  Oiler  v.  Gard, 
23  Id.  212.  In  addition  to  this,  the  Court  seems  to  have  re- 
garded the  contract  on  which  the  suit  was  brought,  and  that 
by  which  the  sheep  were  sublet,  as  it  is  called  in  the  charge, 
as  contracts  of  bailment.  We  do  not  so  regard  the  contract 
in  this  case,  as  we  have  already  intimated. 

4.  !N^otwithstanding  there  was  no  general  denial  pleaded,  it 
was  necessary  for  the  plaintifis  to  prove  the  amount  of  their 
claim  resulting  from  the  non-delivery  of  the  wool,  to  entitle 
them  to  full  damages.  They  demanded  the  right  to  open  and 
close,  which  was  denied  them.  This  was  error,  as  we  have 
decided  in  the  case  of  Fetters  v.  The  Muncie  National  Bank, 
34  Ind.  251. 

5.  As  to  the  sufiiciency  of  the  evidence  to  sustain  the  verdict 
of  the  jury,  we  have  concluded  to  express  no  opinion,  in  vie^y 
of  the  fact  that  the  case  will  probably  be  tried  again,  and  will 
have  to  be  reversed  on  the  grounds  above  stated. 

There  are  some  other  points  made  in  the  motion  for  a  new 
trial,  but  no  others  for  which  the  case  ought,  in  our  opinion,  to 
be  reversed. 

The  judgment  is  reversed,  with  costs,  and  the  cause  remanded 
for  further  proceedings  in  accordance  with  this  opinion. 

Chamberlain  v.  Dickey,  31  Wis.  Woodward  r.  City  of  Boston,  115 
68  ;  Mass.  81 ; 

See  Strang  v,  Taylor,  2  Hill,  326. 


IN   PERSONALTY — SALES.  283 

2. 
EXECUTORY  SALE. 

a. 

Construction    of    thing    to    be    sold. 

Andrews  et  at.  v.  Durant  ei  al. 

Court  of  Appeals,  New  York,  1854. 

11  N.  Y.  35. 

Denio,  J.  In  general,  a  contract  for  the  building  of  a  vessel 
or  other  thing  not  yet  in  esse  does  not  vest  any  property  in  the 
party  for  whom  it  is  agreed  to  be  constructed  during  the  pro- 
gress of  the  work,  nor  until  it  is  finished  and  delivered,  or  at 
least  ready  for  delivery  and  approved  by  such  party.  All  the 
authorities  agree  in  this:  Towers  v.  Osborne,  1  Stra.  506; 
Mucklow  V.  Mangles,  1  Taunt.  318 ;  Johnson  r.  Hunt,  11 
Wend.  139  ;  Crookshank  v.  Burrill,  18  John.  58 ;  Sewall  v. 
Fitch,  8  Cow.  215  ;  Mixer  v.  Ilowarth,  21  Pick.  205.  And  the 
law  is  the  same  though  it  be  agreed  that  payment  yhall  be 
made  to  the  builder  during  the  progress  of  the  work,  and  such 
payments  are  ma<le  accordingl}-.  In  Mucklow  v.  Mangles, 
which  arose  out  of  a  contract  for  building  a  barge,  the  whole 
price  was  paid  in  advance,  the  vessel  was  built  and  the  name 
of  the  person  who  contracted  for  it  was  painted  on  the  stern, 
yet  it  was  held  that  the  title  remained  in  the  builder.  In 
Merritt  v.  Johnson,  7  John.  473,  where  a  sloop  was  agreed  to 
be  built  and  one-third  of  the  price  was  to  be  paid  when  one- 
third  of  the  work  was  done,  two-thirds  when  two-thirds  were 
done,  and  the  balance  when  it  was  completed,  and  before  it 
was  finished  it  was  sold  on  execution  against  the  builder  after 
more  than  a  third  had  been  done  and  more  than  that  proportion 
of  the  price  had  been  paid,  the  Court  decided  that  the  vessel 
was  the  property  of  the  builder  and  not  of  the  person  who  en- 
gaged it  to  be  constructed. 

Where,  during  the  course  of  the  transaction,  the  vessel  or 


284  ILLUSTRATIVE   CASES 

other  thing  agreed  to  be  built  is  identiiied  and  appropriated  so 
that  the  mechanic  would  be  bound  to  complete  and  deliver 
that  particular  thing,  and  could  not,  without  violating  his  con- 
tract, substitute  another  similar  article  though  otherwise  cor- 
responding with  the  agreement,  there  would  seem  to  be  more 
reason  for  holding  that  the  property  was  transferred ;  still  it 
has  never  been  held  that  this  was  enough  to  pass  the  title.  In 
Laidler  v.  Burlinson,  2  Mees.  &  Welsh.  602,  the  vessel  was 
about  one-third  built  when  the  contract  was  made.  The  builder 
and  owners  agreed  to  finish  that  particular  vessel  in  a  manner 
specially  agreed  upon  for  a  price  which  was  the  equivalent  for 
the  finished  vessel.  Before  it  was  completed  the  builder  be- 
came bankrupt,  and  the  possession  passed  into  the  hands  of 
his  assignee.  The  Court  of  Exchequer  held  the  true  construc- 
tion of  the  contract  to  be  that  the  title  was  to  pass  when  the 
ship  was  completed  and  not  before.  The  parties  only  agreed 
to  buy  a  particular  ship  when  complete,  and  although  the  builder 
could  not  comply  with  the  contract  by  delivering  another  ship, 
still  it  was  considered  an  executory  contract  merely.  In  Atkin- 
son V.  Bell,  8  Barn.  &  Cress.  277,  15  Eng.  Com.  Law,  the  same 
principle  was  held  in  respect  to  a  contract  for  making  spinning 
machinery,  and  in  Clark  v.  Spence,  4  Adolph.  &  El.  448,  31 
Eng.  Com.  Law,  which  is  the  case  principally  relied  on  by  the 
defendants,  it  was  admitted  by  the  Court  that  the  appropriation 
of  the  particular  ship  to  the  contract  then  in  question,  by  the 
approval  of  the  materials  and  labor  by  the  superintendent,  did 
not  of  itself  vest  the  property  in  the  purchaser  until  the  whole 
thing  contracted  for  had  been  completed. 

In  the  case  before  us,  it  cannot  be  denied  that  the  barge, 
as  fast  as  its  several  parts  were  finished,  with  the  approval  of 
the  superintendent,  became  specifically  appropriated  to  the 
fulfillment  of  this  contract,  so  that  Bridger  &  Company  could 
not  have  fulfilled  their  agreement  with  the  defendants  in  any 
other  way  than  by  completing  and  delivering  that  identical 
boat.  This  results  from  the  consideration  that  the  superin- 
tendent could  not  be  called  upon  to  inspect  and  approve  of  the 
work  and  materials  of  another  barge,  after  having  performed 
that  duty  as  to  one;  so  that  the  contract  would  be  broken  up 
unless  it  applied  itself  to  this  vessel.     But  it  is  clear  that  this 


IN    PERSONALTY — SALES.  285 

circjiinistance  alone  does  not  operate  to  transfer  the  title.  The 
jireeise  qiK'stioii  in  tiiis  case  is  whether  tlie  concurrence  of  both 
jtarticulars — the  payment  of  parts  of  the  price  at  sjtecitied 
stages  of  the  work,  and  the  intervention  of  a  superintendent  to 
inspect  and  aj'jirove  of  the  work  and  materials — produces  a  re- 
sult which  neitiier  of  them  separately  would  efieet.  It  is,  no 
doubt,  competent  for  the  ]»arties  to  agree  when  and  upon  what 
conditions  the  proj.erty  in  the  subject  of  sucli  a  contract  shall 
vest  in  the  prospective  owner.  The  present  question  is,  there- 
fore, simply  one  of  construction.  The  inquiry  is  whether  the 
parties  intended  by  the  provisions  which  they  have  inserted  in 
theircontract,  that  as  soon  as  the  first  jiayment  had  become 
payable  and  had  been  jniid,  the  jirojK'rty  in  the  unfinished 
barge  should  vest  in  the  defendants,  so  that  thereafter  it  should 
be  at  their  risk  as  to  casualties  and  be  liable  for  th.eir  debts, 
and  pass  to  their  representatives  iji  case  of  their  death.  Such 
an  agreement  would  be  lawful  if  made,  and  the  doubt  only  is 
whether  the  parties  have  so  contracted. 

The  Courts  in  England,  under  contracts  in  all  n)aterial  re- 
spects like  this,  have  held  that  the  title  passed.  In  Woods  v. 
Russell,  5  Barn.  &  Aid.  942,  7  Eng.  Com.  Law,  the  question 
came  before  the  Court  of  King's  Bench,  and  Abbot,  C.  J.,  dis- 
tinctly declared  his  opinion  that  tlie  payment  of  the  instalments 
under  such  a  contract  vested  the  property  in  the  ship  in  the 
party  for  whom  it  was  to  have  been  constructed.  But  there 
was  another  feature  in  the  case  upon  which  it  was  finally  de- 
cided. The  builder  had  signed  a  certificate  for  the  purpose  of 
enabling  the  other  party  to  jjrocure  the  vessel  to  be  registered 
in  his  name,  and  it  was  so  registered  accordingly  while  it  was 
yet  unfinished  and  before  the  question  arose.  The  Court  held 
that  the  legal  eftect  of  signing  the  certificate  for  the  pur[)0se 
of  procuring  the  registry  was,  from  the  time  the  registry  was 
complete,  to  vest  the  general  property  in  the  party  contractinor 
to  have  the  ship  built.  This  case  was  decided  in  1822,  and  was 
the  first  announcement  of  the  principle  upon  which  the  de- 
fendants' counsel  rely  in  the  English  Courts.  The  case  of  Clark 
V.  Spence  was  decided  in  1830.  It  arose  out  of  a  contract  fiir 
building  a  vessel,  which  contained  both  the  features  of  superin- 
tendence and  of  payments  according  to  specific  stages  of  the 


286  ILLUSTRATIVE    CASES 

work,  as  in  Woods  v.  Russell,  and  as  in  the  contract  now  before 
the  Court.     The  Court  of  King's  Bench  was  clearly  of  opinion 
that  as  fast  as  the  ditterent  i)arts  of  the  vessel  were  api-roved  and 
added  to  the  fabric  they  became  appropriated  to  the  purchaser 
b>/  way  of  contract,  and  that  when  the  last  of  them  were  so 
added  and  the  vessel  was  thereby  completed  it  vested  in  the 
purchaser.     The  Court  conceded  that  by  the  general  rules  of 
law,  until  the  last  of  the  necessary  materials  was  added,  the 
thing  contracted  for  was  not  in  existence;  and  they  said  they 
had  not  been  able  to  find  any  authority  for  holding  that  while 
the  article  did  not  exist  as  a  whole  and  was  incomplete,  the 
general  property  in  such  parts  of  it  had  been  from  time  to  time 
constructed  should  vest  in  the  purchaser,  except  what  was  said 
in  the  case  of  Woods  v.  Russell;  and  that  was  admitted  to  be 
a  dictum  merely,  and  not  the  point  on  which  the  case  was  de- 
cided.    The  Court,  however,  decided  upon   the  authority  of 
that  case,  though  with  some,  hesitation,  as  they  said,  that  the 
rights  of  the  parties  in  the  case  before  it,  after  the  making  of 
the  first  payment,  w^ere  the  same  as  if  so  much  of  the  vessel  as 
was  then  constructed  had  originally  belonged  to  the  party  con- 
tracting for  its  construction  and  had  been  delivered  by  him  to 
the  builder  to  be  added  to  and  finished  ;  and  they  said  it  would 
follow  that  every  plank  and  article  subsequently  added  would, 
as  added,  become  the  property  of  the  party  contracting  with 
the  builder.     The  dictum  in  Woods  v.  Russell  was  incidentally 
referred  to  as  the  law  in  Atkinson  v.  Bell,  8  Barn  &  Cress.  277, 
15  Eng.   Com.  Law,  and  the  doctrine  there  stated,  and  con- 
firmed in  Clark  v.  Spence,  was  assumed  to  be  correct  in  Laidler 
V.  Burlinson,  before  referred  to.     It  has  also  been   generally 
adopted  by  systematic  writers  in  treatises  published  or  revised 
since  the  decision  of  Clark  v.  Spence,  that  case  and  Woods  v. 
Russell  being  always  referred  as  the  authority  on  which  it 
rests:    Story  on  Sales,  §§  315,    316;   Chit,  on  Cont.  378-9; 
Abbot  on  Ship.  4,  5. 

It  is  scarcely  necessary  to  say  that  the  English  cases  since 
the  revolution  are  not  regarded  as  authority  in  our  Courts. 
Upon  disputed  doctrines  of  the  common  law  they  are  entitled 
to  respectful  consideration ;  but  where  the  question  relates  to 
the  construction  or  effect  of  a  written  contract,  they  have  no 


IN    PERSONALTY — SALES.  £87 

Sjreater  weight  tliaii  may  be  due  to  tlje  reasons  given  in  tln-ir 
KUppni-t.  Can  it  then  be  1'aiily  eolleeted  from  the  jnovisions  ot" 
this  conti-uct  that  the  title  to  th(j  uii(ini>iied  barge  was  to  be 
tran.^terred  from  the  builder  to  the  other  [larty  uj'on  the  making 
of  the  first  jiayment,  contrary  to  the  principle  well  settled  ami 
generally  understood  that  a  eontraet  for  the  eonstruetion  of  an 
article  not  in  existence  is  executory  until  the  thing  is  tinished 
and  ready  for  delivery?  In  the  first  place,  I  should  say  that 
80  marked  a  circumstance  would  be  stated  in  words  of  un- 
equivocal import ;  and  would  not  be  left  to  rest  upon  the  con- 
structit)n,  if  a  change  of  property  was  really  intended.  The 
provision  for  superintendence  by  the  agent  of  the  intended 
owner,  though  it  serves  to  identify  and  ap[iropriate  the  article 
us  soon  as  its  construction  is  conmienced,  does  not,  as  we  have 
seen,  work  any  change  of  jirojjerty.  Such  would  not  ordinarily 
be  the  intention  to  be  deduced  from  such  a  circumstance. 
Many  of  the  materials  of  which  a  vessel  is  composed  are 
ultimately  covered  so  as  to  be  concealed  from  the  eye  when  it 
is  tinished  ;  and  as  the  safety  of  life  and  property  is  coucerned 
in  the  soundness  and  strength  of  these  materials,  it  is  but  a 
reasonable  precaution  to  be  taken  by  one  who  engages  a  vessel 
to  be  constructed,  to  ascertain  as  the  work  progresses  that 
everything  is  staunch  and  durable ;  and  such  a  provision,  as  it 
seems  to  me,  does  not  tend  to  show  a  design  that  there  shall  be 
a  change  of  property  as  fast  as  any  materials  or  work  are  in- 
spected and  approved.  It  amounts  only  to  an  agreement  that 
when  the  whole  is  comj)leted  the  {tarty  will  receive  it  in  fulfill- 
ment of  the  contract.  The  provision  for  advances  at  jiarticular 
stages  of  the  work  is  a  very  usual  one  where  an  exjiensive 
undertaking  is  contracted  for,  and  it  only  shows  that  the  party 
advancing  is  willing  thus  to  assist  the  artisan  provided  that  he 
can  see  that  the  work  is  going  on  in  good  faith,  so  as  to  afi'ord 
a  reasonable  prospect  that  he  will  realize  the  avails  of  his  ex- 
penditure in  a  reasonable  period.  The  argument  for  the  de- 
fendants would  be  somewhat  stronger  if  we  could  say  that  the 
amount  to  be  advanced  at  the  several  stages  mentioned  was 
understood  by  the  parties  to  be  the  price  or  equivalent  ibr  the 
labor  and  materials  already  ex})ended.  This  by  no  means  ap- 
pears, but,  on  the  contrary,  there  is  strong  reason  to  believe 


288  ILLUSTRATIVE   CASES 

that  in  tins  case  a  considerable  portion  of  the  price  was  to  be 
at  all  times  kept  back  in  order  to  secure  the  speedy  completion 
of  the  contract.  When  Bridger  &  Co.  failed  only  three  thou- 
sand dollars  of  the  five  thousand  had  been  paid,  and  they  would 
not  be  entitled  to  any  more  until  the  barge  was  finished,  and 
yet  it  cost  only  seven  hundred  dollars  to  complete  it.  This 
renders  it  improbable  that  the  parties  could  have  intended  the 
sale  and  purchase  of  so  much  as  was  done  at  the  several  stages 
of  the  work  at  which  payments  were  to  be  made,  if  indeed 
such  a  contract  were  not  in  itself  so  much  out  of  the  course  of 
the  ordinary  conduct  of  parties  as  not  to  be  assumed  without 
unequivocal  language. 

The  decision  in  Clarke  v.  Spence  is  placed  very  much  upon 
the  idea  that  parties  may  have  contracted  in  reference  to  the 
doctrine  announced  in  Woods  v.  Russell.  That  argument  can 
have  no  force  here,  but,  on  the  contrary,  the  inference  to  be 
drawn  from  our  own  cases,  and  particularly  from  Merritt  v. 
Johnson,  would  be  that  the  title  remained  in  the  builder  under 
such  a  contract  until  the  completion  of  the  vessel. 

The  foregoing  considerations  have  led  me  to  the  conclusion 
that  the  modern  English  rule  is  not  founded  upon  sufticient 
reasons  and  that  it  ought  not  to  be  followed.  The  judgment 
of  the  Supreme  Court  should,  therefore,  be  reversed  and  a  new 
trial  ordered. 

DARLINGTON,  P.  P.,  77.  Shaw  v.  Smith,  48  Conn.  306  ; 

McConihe  v.  N.  Y.  &  E.  Ky.,  20  Johnson  v.  Hunt,  11  Wend.  139 ; 

N.  Y.  495  ;  Mucklow   v.  Mangles,  1   Taunt. 

Fairfield  v.  Nye,  60  Maine,  372  ;  318. 


IN    PERSONALTY — SALES.  289 

b. 

Conditions   Precedent. 

Payment   and    Delivery. 

Paul  v.  Reed  ct  o.l. 

Supreme  Judicial  Court  of  New  Hampshire,  1872. 

52  N.  II.  130. 

Statement  of  facts :  One  Mr.  Reed  sold  Dana  R.  Moody  a 
hog,  some  flour,  butter,  a  bedstead,  some  sugar  and  salt,  at 
an  agreed  price  of  $30.30  cash  on  delivery.  The  hog  was  put 
into  a  separate  pen,  and  the  sugar  put  with  other  sugar  of 
IVIr.  Moody's.  Just  as  Mr.  Moody  was  to  hand  Mr.  Reed  the 
cash,  the  sheriff,  standing  by,  served  a  process  on  Mr.  Moody, 
as  trustee  (icaniishce),  in  an  action  of  one  Azor  Paul  against 
I^Ir.  Reed.  Whereupon  Mr.  Moody  refused  to  pay  Mr.  Reed 
the  cash,  and  Reed  reclaimed  his  property;  the  Court,  however, 
held  the  trustee  chargeable  with  the  $30.80,  Mr.  Reed  duly 
excepting. 

Bellows,  C.  J.  Unless  the  principal  defendant  had  another 
liog  and  other  provisiotis  or  fuel,  so  that  the  value  of  his  pro- 
visions and  fuel  exceeded  twenty  dollars,  all  the  articles  sold  to 
the  trustee  were  exempt  from  attachment.  As  there  is  no 
proof  that  lie  had  another  hog,  or  more  provisions,  or  fuel,  the 
Court  cannot  tind  that  he  had  such  ;  and,  therefore,  unless  the 
title  in  these  goods  had  vested  in  the  trustee  so  that  he  became 
indebted  for  them,  the  trustee  must  be  discharged. 

The  question  then  is,  whether  the  goods  were  delivered  so  as 
to  vest  the  title  in  the  trustee. 

The  proof  tends  to  show  that  the  sale  was  for  cash,  and  not 
on  credit ;  so  the  trustee  testifies,  and  this  is  just  what  would 
have  been  intended  had  no  time  of  payment  been  stipulated: 
2  Kent's  Com.  *496,  *497  ;  Story  on  Con.,  sec.  790;  Noy's 
Maxims,  87  ;  Ins.  Co.  v.  De  Wolf,  2  Cow.  105.  The  case,  then, 
stands  before  us  as  a  contract  of  sale  for  cash  on  delivery ;  in 


290  ILLUSTRATIVE    CASES 

such  case  the  delivery  and  pa3"iTient  are  to  be  concurrent  acts; 
and,  therefore,  if  the  goods  are  put  into  the  possession  of  the 
buj'er  in  the  expectation  that  he  will  immediately  pay  the 
price,  and  he  does  not  do  it,  the  seller  is  at  liberty  to  regard 
the  delivery  as  conditional,  and  may  at  once  reclaim  the  goods. 
In  such  a  case  the  contract  of  sale  is  not  consummated,  and  the 
title  does  not  vest  in  the  buyer.  The  seller  may,  to  be  sure, 
waive  the  payment  of  the  price,  and  agree  to  postpone  it  to  a 
future  day,  and  proceed  to  complete  the  delivery  ;  in  which 
case  it  would  be  absolute,  and  the  title  would  vest  in  the  buyer. 
But  in  order  to  have  this  effect,  it  must  appear  that  the  goods 
were  put  into  the  buyer's  possession  with  the  intention  of  vest- 
ing the  title  in  liim. 

If,  however,  the  delivery  and  payment  were  to  be  simultane- 
ous, and  the  goods  w^ere  delivered  in  the  expectation  that  the 
price  would  be  immediately  paid,  tlie  refusal  to  make  payment 
would  be  such  a  failure  on  the  part  of  the  buyer  to  perform  the 
contract  as  to  entitle  the  seller  to  put  an  end  to  it  and  reclaim 
the  goods. 

This  is  not  only  eminently  just,  but  it  is  in  accordance  with 
the  great  current  of  authorities,  which  treat  the  delivery,  under 
such  circumstances,  as  conditional  upon  the  immediate  payment 
of  the  price  :  2  Kent's  Com.  *497  ;  Chittj^  on  Con.,  9th  Am.  ed,, 
*350,  note  1  and  cases ;  Story  on  Con.,  sees.  796,  804 ;  Palmer 
V.  Hand,  13  Johns.  434;  Marston  v.  Baldwin,  17  Mass.  605; 
Leven  v.  Smith,  1  Denio,  573,  and  cases  cited.  So  the  doctrine 
was  fully  recognized  in  Russell  v.  Minor,  22  AVend.  659,  where, 
on  the  sale  of  paper,  it  was  agreed  that  the  buyer  should  give 
his  notes  for  it  on  delivery,  and  the  delivery  was  in  several 
parcels.  On  delivery  of  the  first,  the  seller  asked  for  a  note; 
but  the  buyer  answered  that  he  would  give  his  note  for  the 
whole  when  the  remainder  was  delivered,  and  the  parcel  now 
delivered  could  remain  until  then.  When  the  rest  was  de- 
livered the  defendant  refused  to  give  his  note;  and  the  Court 
held  that  the  delivery  of  all  the  goods  was  conditional,  and  that 
the  seller  might  maintain  replevin  for  all  the  goods.  The  gen- 
eral doctrine  is  fully  recognized  in  this  State  in  Luey  v.  Bundy, 
9  ]Sr.  11.  298,  and  more  especially  in  Ferguson  v.  Clifford,  87 
Id.  86,  where  it  is  laid  down  that  if  the  delivery  takes  place 


IN    PERSONALTY— SALES.  291 

when  payment  is  expected  simultaneously  therewith,  it  is  in 
law  made  upon  the  condition  precedent  that  the  price  shall 
forthwith  be  paid.  If  this  condition  be  not  performed,  the 
delivery  is  inoperative  to  pass  the  title  to  the  property,  and  it 
may  be  instantly  reclaimed  by  the  vendor. 

The  question  then  is,  whether  the  delivery  here  was  absolute, 
intending  to  pass  the  title  to  the  vendee  and  trust  him  for  the 
price,  or  whether  it  was  made  with  the  expei-tation  that  tbc 
cash  would  be  paid  immediately  on  the  delivery.  Tliis  is  a 
question  of  fact,  but  it  is  submitted  to  the  Court  for  decision. 
Ordinarily  it  should  be  passed  upon  at  the  trial  term  ;  br.t 
where  the  question  is  a  mixed  one  of  law  and  iact,as  it  is  here, 
it  may  not  be  irregular,  if  the  Juilge  thinks  it  best,  to  reserve 
the  entire  question  for  the  whole  Court.  Assuming  that  the 
questions  both  of  law  and  fact  are  reserved,  we  find  that  the 
goods  were  sold  for  cash,  and  of  course  that  the  delivery  of  the 
goods  and  the  payment  of  the  price  were  to  be  simultaneous ; 
and,  accordingly,  when  a  part  had  been  delivered  and  the 
seller  was  figuring  up  the  amount,  and  the  buyer  had  taken  out 
his  money  to  pay  the  price,  the  act  was  arrested  by  the  service 
of  this  process. 

The  evidence  relied  upon  to  prove  the  delivery  to  be  absolute 
and  intended  to  pass  the  title  at  all  events  is  simply  and  solely 
the  changing  of  the  hog  into  another  pen  and  mixing  the 
sugar  with  other  sugar  of  the  buyer.  "Without  this  mixing  of 
the  sugar,  the  case  would  be  just  the  ordinary  one  of  a  delivery 
of  the  goods  with  the  expectation  that  the  buyer  would  at  once 
pay  the  price  ;  and  we  think  that  circumstance  is  not  enough 
to  show  a  purpose  to  make  the  delivery  absolute,  but  rather  a 
confident  expectation  that  the  buyer  would  do  as  he  had  agreed 
and  pay  the  price  at  once.  The  case  of  Henderson  v.  Lauck, 
21  Pa.  St.  359,  was  very  much  like  this.  There  was  a  sale  of 
corn,  to  be  paid  for  on  the  delivery  of  the  last  load  ;  and  as  the 
loads  were  delivered  the  corn  was  placed  in  a  hea[>  with  other 
corn  of  the  buyer,  in  the  presence  of  both  parties.  On  the 
delivery  of  the  last  lot  the  buyer  failed  to  pay,  and  the  seller 
gave  notice  that  he  claimed  the  corn,  and  brought  replevin, 
which  was  lield  to  lie — the  Court  regarding  the  delivery  as 
conditional,  and  the  jilaintilf  in  no  fault  for  the  intermingling 


292  ILLUSTRATIVE    CASES 

of  the  corn.  It  is  very  clear  that  the  interniinglitig  of  tlie  sugar 
does  not,  as  matter  of  hiw,  make  the  delivery  absolute  ;  and 
I  think,  as  matter  of  fact,  it  is  not  sufficient  to  prove  an  inten- 
tion to  pass  the  title  absolutely.  When  the  buyer  declined  to 
pay  the  price,  the  seller  at  once  reclaimed  the  goods,  and  so 
notified  the  buyer,  who  did  not  object  to  giving  up  the  sale  if 
he  could  safely  do  so. 

In  respect  to  the  question  now  before  us,  it  is  not  material 
for  what  reason  the  buyer  declined  to  pay  for  the  goods,  although 
the  b'ervice  of  the  trustee  process  might  shield  him  from  dam- 
ages in  a  suit  by  the  seller  for  not  taking  and  paying  for  the 
goods.  For  the  puriioses  of  this  question,  it  is  enough  that  the 
buyer  did  not  pay  the  price,  and  thus  gave  the  seller  a  right  to 
reclaim  the  goods,  which  he  did  at  once.  The  goods  them- 
selves were  exempt  from  attachment;  and  the  fact  that  the 
trustee  process  was  designed  to  intercept  the  price  of  those 
goods  could  not  affect  his  right  to  reclaim  them  when  the 
buyer  declined  to  pay  the  price. 

The  exception  must  therefore  be  sustained,  and  the  trustee 
discharged. 

Whitney  v.  Eaton  ct  al.,  15  Gray,  Council  Bluffs  Ii-on  AVorks  i\  Cup- 

225  ;  pey,  41  Iowa,  104  ; 

Young  V.  Kansas  Mfg.  Co.,  2  So.  Posey  v.  Scales,  55  Ind.  282  ; 

Rep.  817  ;  23  Fla.  394 ;  Cleveland  v.  Sterrett,  70  Pa.  St. 

Simmons  v.   Green,  35  Ohio  St.  204; 

104  ;  Metz  et  al  v.  Albrecht,  52  111.  491. 

Robison  et   al.  v.  Tyson,  46  Pa. 
St.  286  ; 


Inspection,   Measuring,   Weighing,   etc. 

LiNGHAM  V.  EgGLESTON. 

Supreme  Court  of  Michigan,  1873. 
27  Mich.  324. 

CooLEY,  J.  The  contest  in  this  case  relates  to  a  sale  of  lum- 
ber by  Eggleston  to  Lingham  and  Osborne,  and  the  question 
involved  is,  whether  the  contract  between  the  parties  amounted 


IN   PERSONALTY — SALES.  293 

to  a  siile  in  preseidi  and  passed  the  title,  or  merely  to  an  ex- 
ecutoiy  contract  of  sale.  The  lumber,  subsequent  to  the  con- 
tract and  before  actual  delivery  to  the  {turchasers,  was  accident- 
ally destroyed  by  tire,  and  the  purchasers  now  refuse  to  pay  for 
it,  on  the  ground  that  it  never  became  their  property.  The 
action  was  brought  by  Eggleston  for  goods  bargained  and  sold, 
and  in  the  Court  below  he  recovered  judgment. 

There  appears  to  be  very  little  dispute  about  the  facts.  The 
lumber  was  piled  in  Eggleston's  mill  yard  at  Birch  Run.  In 
September,  1871,  he  sold  his  mill  to  a  Mr.  Thayer,  reserving 
the  right  to  leave  the  lumber  in  the  yard  until  he  disposed 
of  it.  .To  most  of  the  lumber  the  plaintiff  had  an  exclusive 
title ;  but  there  were  four  or  five  piles  which  he  owned  jointly 
with  one  Robinson.  The  whole  amount  was  from  200,000  to 
250,000,  excluding  Robinson's  share  in  the  four  or  five  piles. 
The  defendants  went  to  the  mill  yard  September  23,  1871,  and 
proposed  to  buy  the  lumber.  Plaintiff  went  through  the  yard 
with  them,  pointed  out  the  several  piles,  and  designated  those  in 
which  Robinson  had  an  undivided  interest,  and  also  some  piles 
of  shingles  which  they  proposed  to  take  with  the  lumber. 
After  examining  the  wliole  to  their  satisfaction,  the  defendants 
agreed  upon  a  purchase,  and  the  following  written  contract 
was  entered  into: — 

"  Flint,  September  23, 1871.  Lingham  and  Osborne  bought 
from  C.  Eggleston,  this  day,  all  the  pine  lumber  on  his  yard  at 
Birch  Run,  at  the  following  prices:  For  all  common,  eleven 
dollars,  and  to  include  all  better  at  the  same  price ;  and  for  all 
culls,  five  dollars  and  fifty  cents  per  M.,  to  be  paid  for  as  fol- 
lows: Five  hundred  dollars  to-day,  and  five  hundred  dollars  on 
the  10th  of  October  next ;  the  balance,  one-half  on  1st  day  of 
January,  A.  D.  1872,  and  the  rest  on  the  1st  day  of  February 
following;  said  lumber  to  be  delivered  by  said  Eggleston  on 
board  of  cars  when  requested  by  said  Lingham  and  Osborne, 
which  shall  not  be  later  than  10th  of  Xovcmber  next.  Also, 
some  shingles,  at  two  dollars  per  M.,  for  Xo.  2,  and  four  dol- 
lars for  No.  1. 

(Signed)    "  Lingham  &  Osborne. 

CiiAUNCEY  Eggleston,  Jr." 
20 


294  ILLUSTRATIVE    CASES 

The  five  hundred  dollars  mentioned  in  this  contract  to  be 
paid  at  the  time  of  its  execution  was  paid.  A  few  days  later 
defendants  went  to  the  mill  yard  in  plaintifi''s  absence  and  loaded 
two  cars  with  the  lumber.  He  returned  before  they  had  taken 
them  away,  and  helped  them  count  the  pieces  on  the  cars,  but 
left  them  to  measure  them  afterwards.  At  this  time  the  lum- 
ber in  the  piles  had  not  been  assorted,  inspected,  or  measured. 
There  was  disagreement  between  the  parties  as  to  whether  they 
had  fixed  upon  a  person  to  inspect  the  lumber,  the  defendants 
claiming  that  such  was  the  fact.  On  the  9th  day  of  October, 
1871,  Lingham  met  plaintift'on  the  cars  at  Flint,  and  told  him 
the  fires  were  raging  near  Birch  Hun  ;  that  the  lumber  yard 
was  safe  yet,  but  that  there  were  eight  cars  standing  on  the 
side  track,  and  he  had  better  go  up  to  Birch  Run  and  load 
what  were  there,  and  get  what  lumber  he  could  away ;  plain- 
tift'  took  the  first  train  for  the  purpose,  and  while  on  the  train 
the  train  boy  gave  him  the  following  note  from  Lingham: — 

"Holly.  Mr.  Eggleston :  You  may  load,  say  ten  thousand, 
if  you  think  best,  on  each  car,  and  we  can  have  it  inspected 
as  it  is  unloaded.     I  will  try  and  come  up  to-morrow." 

When  plaintiff"  reached  Birch  Run  the  fire  was  raging  all 
about  the  mill,  and  that,  with  all  the  lumber  in  the  yard,  was 
soon  totally  destroyed  by  fire.  Such  are  the  undisputed  facts 
in  the  case;  and  upon  these  the  jury  were  instructed  in  sub- 
stance that  a  completed  contract  of  sale  was  made  out,  and  the 
plaintiff"  was  entitled  to  recover  the  purchase  price. 

Where  no  question  arises  under  the  Statute  of  Frauds,  and 
the  rights  of  creditors  do  not  intervene,  the  question  whether 
a  sale  is  completed  or  only  executory  must  usually  be  deter- 
mined upon  the  intent  of  the  parties,  to  be  ascertained  from 
their  contract,  the  situation  of  the  thing  sold,  and  the  circum- 
stances surrounding  the  sale.  The  parties  may  settle  this  by 
the  express  words  of  their  contract ;  but  if  they  fail  to  do  so, 
we  must  determine  from  their  acts  whether  the  sale  is  com- 
plete. If  the  goods  sold  are  sufficiently  designated,  so  that  no 
question  can  arise  as  to  the  thing  intended,  it  is  not  absolutely 
essential  that  there  should  be  a  delivery,  or  that  the  goods 
should  be  in  deliverable  condition,  or  that  the  quantity  or 
quality,  when  the  price  depends  upon  either  or  both,  should  be 


IN    PERSONALTY — SALES.  205 

(letermiiied.  All  these  are  circumstances  having  an  important 
bear'i..:r  when  we  are  seeking  to  arrive  at  the  intention  of  the 
parties,  but  no  one  of  them,  nor  all  combined,  are  conclusive. 

In  Blackburn  on  Sales,  120,  the  rule  on  this  subject  is  very 
clearly  and  correctly  stated  as  follows  :  The  question,  the  author 
says,  is  "  a  question  depending  upon  the  construction  of  the 
agreement  ;  for  the  law  professes  to  carry  into  effect  the  inten- 
tion of  the  parties  as  a[)pearing  from  the  agreement,  and  to 
transfer  the  projicrty  when  such  is  the  intention  of  the  agree- 
ment ;  not  before.  In  this,  as  in  other  cases,  the  parties  are 
apt  to  express  their  intentions  obscurely;  very  often  because 
the  circumstances  rendering  the  point  of  importance  arc  not 
present  to  tlieir  minds,  so  that  the}'  really  had  no  intention  to 
express.  Tlie  consequence  is  that,  without  absolutely  losing 
sight  of  the  fundamental  point  to  be  ascertained,  the  courts 
have  adopted  certain  rules  of  construction  which,  in  their 
nature,  are  more  or  less  technical.  Some  of  them  seem  very 
well  fitted  to  aid  the  Court  in  discovering  the  intention  of  the 
ftarties;  the  substantial  sense  of  others  may  be  questioned. 
The  parties  do  not  contemplate  a  bargain  and  sale  till  the 
specific  goods  on  which  their  contract  is  to  attach,  are  agreed 
upon.  Where  the  goods  arc  ascertained,  the  parties  are  taken 
to  contemplate  an  immediate  bargain  and  sale  of  the  goods, 
unless  there  be  sometliing  to  indicate  an  intention  to  postpone 
the  transferen(.-e  of  the  property  till  the  fulfilment  of  any  con- 
ditions;  and  when  by  the  agreement  the  seller  is  to  do  any- 
thing to  the  goods  for  the  purpose  of  putting  them  into  a  de- 
liverable shape,  or  when  an\tbing  is  to  be  done  to  them  to 
ascertain  the  price,  it  is  presume*!  that  the  parties  mean  to 
make  the  performance  of  those  things  a  condition  precedent  to 
the  transfer  of  tlie  property.  But  as  these  are  only  rules  for 
the  construction  of  the  agreement,  they  must  yield  to  any  thing 
in  the  agreement  which  clearl}''  shows  a  contrary  intention. 
The  parties  may  lawfully  agree  to  an  immediate  transference 
of  the  property  in  the  goods,  although  the  seller  is  to  do  many 
things  to  them  before  they  are  to  be  delivered;  and,  on  the 
other  hand,  they  may  agree  to  postpone  the  vesting  of  the  pro- 
perty till  after  the  fulfilment  of  any  conditions  they  please." 
In  Benjamin  on  Sales,.  214,  21,'),  the  same  doctrine  is  laid  down. 


296  ILLUSTRATIVE    CASES 

and  it  is  said  that  "nothing  prevents  the  parties  from  agreeing 
that  the  property  in  a  specific  thing  sokl  and  ready  for  delivery 
is  not  to  pass  till  certain  conditions  are  accomplished,  or  that 
the  property  shall  pass  in  a  thing  which  remains  in  the  vendor's 
possession,  and  is  not  ready  for  delivery,  as  an  unfinished  ship, 
or  which  has  not  yet  been  weighed  or  measured,  as  a  cargo  of 
corn  in  hulk,  sold  at  a  certain  price  per  pound  or  per  bushel." 
And  see  lb.  221,  et  seq. 

Upon  this  general  principle  there  is  no  difficulty  in  reconcil- 
ing most  of  the  reported  decisions.  And  even  without  express 
words  to  that  effect,  a  contract  lias  often  been  held  to  be  a  com- 
plete sale  where  many  circumstances  were  wanting  and  many 
things  to  be  done  by  one  or  both  the  parties  to  fix  conclusively 
the  sum  to  be  paid  or  to  determine  some  other  fact  material  to 
their  respective  rights. 

The  most  important  fact  indicative  of  an  intent  that  title 
shall  pass  is  generally  that  of  delivery.  If  the  goods  be  com- 
pletely delivered  to  the  purchaser,  it  is  usually  very  strong  if 
not  conclusive  evidence  of  intent  that  the  property  shall  vest 
in  him  and  be  at  his  risk,  notwithstanding  weighing,  measur- 
ing, inspection,  or  some  other  act  is  to  be  done  afterwards.  A 
striking  case  in  illustration  is  that  of  Young  v.  Mathews,  LaAv 
R,  2  Exch.  127,  where  a  large  quantity  of  bricks  was  pur- 
chased in  kilns.  Only  a  part  of  them  were  burned,  and  none 
of  them  were  counted  out  from  the  rest ;  but  they  were  paid 
for,  and  such  delivery  as  in  the  nature  of  the  case  was  practi- 
cable was  made.  The  Court  held  that  the  question  w^as  one  of 
intention  merely,  and  that  it  was  evident  the  parties  intended 
the  title  to  pass.  To  the  same  efiect  are  Woods  v.  Russell,  5 
B.  &  Aid.  942,  7  Eng.  Com.  Law ;  Riddle  v.  Varnum,  20  Pick. 
280;  Bates  v.  Conklin,  10  Wend.  389;  Olyphant  z;.  Baker,  5 
Denio,  379 ;  Bogy  v.  Rhodes,  4  Greene  (Iowa),  133  ;  Crofoot  v. 
Bennett,  2  N.  Y.  258  ;  Cunningham  v.  Ashbrook,  20  Mo.'  553. 

So,  if  the  goods  are  specified,  and  all  that  was  to  be  done  by 
the  vendor  in  respect  thereto  has  been  done,  tlie  title  may  pass, 
though  the  quantity  and  quality,  and  consequently  the  price  to 
be  paid,  are  still  to  be  determined  by  the  vendee :  Turley  v. 
Bates,  2  II.  &  C.  200 ;  Kohl  v.  Lindley,  39  111.  195. 

And  even  if  something  is  to  be  done  by  the  vendor,  but  only 


IN    PERSONALTY — SALES.  297 

when  directed  by  the  vendee,  and  for  his  convenience,  a?,  for 
instance,  to  loud  the  goods  npon  a  vessel  for  transportation,  ilie 
property  may  pass  by  the  contract  of  sale  notwithstanding: 
AVhitcomb  v.  Whitney,  24  Mich.  480;  Terry  r.  Wheeler,  25 
Iv^  Y.  520. 

Jiut  the  authorities  are  too  numerous  and  too  uniform  to 
justify  citation  which  hold  that  where  any  thing  is  to  be  done 
by  the  vendor,  or  by  the  mutual  concurrence  of  both  parties, 
for  the  purpose  of  ascertaining  the  price  of  the  goods,  as  by 
weigbing,  testing,  or  measuring  them,  where  the  price  is  to  de- 
pend upon  the  quantity  or  quality  of  the  goods,  the  perform- 
ance of  those  things  is  to  be  deemed  presumptively  a  condition 
precedent  to  the  transfer  of  the  i>roperty,  although  the  indi- 
vidual goods  be  ascertained,  and  they  are  in  the  state  in  which 
they  may  and  ought  to  be  accepted. 

A  learned  author  from  whom  we  have  already  quoted  says 
of  this,  that  "  the  rule  seems  to  be  somewhat  hastily  adopted 
from  the  civil  law,  without  adverting  to  the  great  distinction 
made  by  the  civilians  between  a  sale  for  a  certain  price  in  money 
and  an  exchange  for  any  thing  else.  The  English  law  makes 
no  such  distinction,  but,  as  it  seems,  has  adopted  the  rule  of  the 
civil  law,  which  seems  to  have  no  foundation  except  in  the  dis- 
tinction. In  general  the  weighing,  etc.,  must  in  the  nature  of 
things  bo  intended  to  be  done  before  the  buyer  takes  possession 
of  the  goods;  but  that  is  quite  a  difierent  thing  from  intend- 
ing it  to  be  done  before  the  vesting  of  the  property  ;  and  as  it 
must  in  general  be  intended  that  both  the  parties  shall  concur 
in  the  act  of  weighing,  when  the  price  is  to  depend  upon  the 
weight,  there  seems  little  reason  why,  in  cases  in  which  the 
specific  goods  are  agreed  upon,  it  should  be  supposed  to  be  the 
intention  of  the  parties  to  render  the  delay  of  that  act,  in  which 
the  buyer  is  to  concur,  beneficial  to  him.  Whilst  the  price 
remains  unascertained,  the  sale  is  clearly  not  for  a  certain  sum 
of  money,  and,  therefore,  does  not  come  within  the  civilian's 
definition  of  a  perfect  sale,  transferring  the  risk  and  gain  of 
the  thing  sold  ;  but  the  English  law  does  not  require  that  the 
consideration  for  a  bargain  and  sale  should  be  in  moneys  num- 
bered, provided  they  be  of  value."  But  the  same  writer,  with 
candor  and  justice,  adds  that  this  rule  is  now  "  firmly  estab- 


298  ILLUSTRATIVE    CASES 

lished  as  English  law  :"  Blackburn  on  Sales,  153.  And  see 
Turley  v.  Bates,  2  H.  &  C.  200,  in  which  this  passage  is  quoted 
and  the  conclusion  treated  as  unquestionable. 

What  then  are  the  facts  in  this  case  from  which  the  intent 
of  the  parties  is  to  be  inferred?  The  lumber  was  specitieally 
designated,  so  that  no  question  of  identity  could  arise.  It  was 
not  delivered,  and  the  vendor  was  to  place  it  on  board  the  cars, 
if  desired  to  do  so,  within  a  time  specified  ;  but  as  in  any  event 
the  vendees  were  to  take  it  at  Birch  Run,  and  it  was  optional 
with  them  to  load  it  on  the  cars  themselves  or  to  have  the 
vendor  do  it  for  them,  and  they  had  no  right  to  require  that  he 
should  do  so  after  the  day  named,  we  think  the  circumstance 
that  actual  delivery  was  not  made  is  not  one  of  very  much  im- 
portance in  the  present  discussion.  What  is  of  more  impor- 
tance is,  that  neither  the  quality  nor  the  quantity  was  deter- 
mined ;  and  the  evidence  in  the  case  shows  that  as  to  these 
there  might  very  well  be,  and  actually  were,  great  differences 
of  opinion.  The  price  to  be  paid  was  consequently  not  ascer- 
tained, and  could  not  be  until  the  qualities  were  separated  and 
measurement  had. 

It  will  be  observed  that  the  contract  did  not  provide  how  or 
by  whom  the  inspection  and  measurement  should  be  made.  It 
was  certainly  not  the  right  of  either  party  to  bind  the  other 
party  by  an  inspection  and  measurement  of  his  own  ;  it  was  the 
right  of  both  to  participate,  and  we  must  suppose  such  was  the 
intent,  unless  something  clearly  appears  in  the  case  to  show  the 
contrary.  Nothing  of  that  nature  appears  in  the  record  except 
the  disputed  evidence  of  defendants,  that  a  person  was  agreed 
upon  for  the  purpose.  The  note  sent  by  Lingham  to  Eggleston 
proposing  that  the  eight  cars  be  loaded,  and  that  the  vendees 
make  the  proper  inspection,  was  a  mere  proposition,  and  never 
acted  upon.  It  is  very  evident  Eggleston  was  under  no  obliga- 
tion to  trust  this  important  transaction  exclusively  to  the  ven- 
dees, and  we  have  no  right  to  infer  that  he  would  have  done 
so.  It  follows  that  something  of  high  importance  remained  to 
be  done  by  the  vendor  to  ascertain  the  price  to  be  paid  ;  and 
as  this,  under  all  the  authorities,  was  presumptively  a  condition 
precedent  to  the  transference  of  the  title— nothing  to  the  con- 
trary appearing— the  Court  should  have  so  instructed  the  jury. 


IN   PERSONALTY — SALES.  299 

The  instructions  given  were  in  substance  directly  to  the  con- 
trary. 

It  follows  that  the  judgment  must  be  reversed,  with  costs, 
and  a  new  trial  ordered. 


Selection,    Different    Qualities,    and    Value. 

Foot  d  al.  v.  Marsh  ct  al. 
Court  of  Appeals,  New  York,  1873. 
51  N.  Y.  288. 

Gray,  C.  The  princijial  question  presented  for  our  con- 
sideration arises  upon  the  defendants'  exception  to  that  portion 
of  the  charge  given  by  the  Judge  to  the  jury,  in  which  he 
stated,  in  substance,  that  if  no  agreement  was  made  or  authority 
given  to  the  defendants  to  set  apart  for  the  plaintilfs  the  oil 
described  in  the  contract,  that  then  the  contract,  from  its  terms, 
became  a  contract  to  deliver  4000  gallons  of  oil  when  called 
for,  and  that  the  defendants,  in  order  to  comply  with  the  call, 
were  bound  to  have  that  quantity  on  hand  whenever  the  call 
should  be  made.  This  case  is  by  the  defendants  likened  to  the 
case  of  Kiinberly  and  others  v.  Patchin,  19  N,  Y.  330,  and  the 
ground  upon  which  this  portion  of  the  charge  is  claimed  to  be 
erroneous  is  that  the  contract,  when  read  by  the  light  of  the 
circumstances  surrounding  it,  is  in  principle  like  the  contract 
in  that  case,  for  the  sale  of  GOOO  bushels  of  wheat,  parcel  of 
6249  bushels,  at  seventy  cents  per  bushel,  of  which  no  separation 
or  manual  delivery  was  made ;  but  as  a  substitute  for  a  manual 
delivery,  and  to  constitute  tlve  contract  for  its  sale  an  executed — 
not  an  executory — contract,  the  vendor  gave  the  purchaser  his 
receipt  for  it,  agreeing  to  deliver  it  to  his  order,  free  of  all 
charges :  whereupon  the  vendor  was  held  to  have  constituted 
himself  the  bailee  of  the  wheat,  and  to  have  thenceforth  stood 
in  that  relation  to  the  purchaser  and  the  property.  To  render 
the  contract  effectual  as  an  executed  contract  from  the  time  it 
was  made,  the  purchaser  must  have  been  invested  with  the 
right,  after  demand,  to  take  the  jiroperty.  This  was  a  right 
the  defendants  at  the  time  of  making  the  sale  had  no  power  to 


300  ILLUSTRATIVE    CASES 

confer,  they  not  being  at  the  time  the  owners  of  any  portion  of 
it ;  nor  did  they,  in  the  place  of  a  manual  delivery,  give  to  the 
plaintiffs  their  receipt  for  it,  and  thus  attempt  to  constitute 
themselves  the  bailees  of  the  plaintiffs  and  of  the  oil,  as  did 
the  vendor  of  the  wheat  in  Kimberly  v.  Patchin.     If  the  150 
barrels  of  oil,  of  which  the  100  barrels  and  the  4000  gallons 
were  understood  to  be  a  part,  were,  like  the  wheat,  all  of  the 
same  quality,  so  that  nothing  but  the  quantity,  without  reference 
to  quality,  was  to  be  taken  from  the  larger  amount,  the  ex- 
trinsic facts  that  the  sale  was  at  a  profit  of  only  two  cents  per 
gallon,  and  the  risk  of  leakage  during  the  summer  months  so 
largely  exceeded  the  profits  of  the  sale,  it  might  be  urged,  with 
more  plausibility  than  it  now  can,  that  the  agreement  of  the 
defendants  to  deliver  the  barrels  and  oil  when  called  for  was 
like  the  agreement  contained  in  the  receipt  in  Kimberly  v. 
Patchin  to  deliver  the  wheat  to  the  order  of  the  purchaser,  and 
that  the  defendants  should,  under  the  circumstances,  as  was  the 
vendor  in  that  case,  be  regarded  as  the  bailees  of  the  plaintiffs. 
(But,  in  order  to  constitute  an  arrangement  between  the  parties 
for  a  manual  delivery  of  a  parcel  of  property  mixed  with  an 
ascertained  and  defined  larger  quantity,  it  must  be  so  clearly 
defined  that  the  purchaser  can  take  it,  or,  as  tlie  assignee  of  the 
purchaser  did  in  Kimberly?;.  Patchin,  maintain  replevin  for  it. 
In  this  case  the  larger  quantity,  parcel  of  which  was  understood 
to  be  contracted  to  the  plaintiffs,  consisted  of  150  barrels  con- 
taining three  different  qualities  of  oil,  but  sixty-eight  of  which 
(forty-seven  of  the  Buffalo  and  Erie  oil  and  twenty-one  barrels 
marked  V.  B.)  corresponded  with  the  sample  by  which  the  100 
barrels  were  sold.     The  residue,  forty-six  barrels  of  the  Murray 
oil,  was  superior  to  the  sample;  and  thirty-six,  known  as  the 
Lemon  oil,  were  inferior  to  the  sample.     The  plaintiffs  would 
not  have  the  right  to  take  the  Murray  or  superior  oil,  and  could 
not  be  compelled   to  take  the  Lemon  or  inferior  oik     And  if 
the  sample  was,  as  the  witness  at  one  time  stated,  a  poor  sample 
of  the  most  inferior  oil,  then   but  thirty-six  barrels  of  that 
description,  containing  less  than  1500  gallons,  could  have  been 
selected  from   the   wdiole  quantity,  and    hence   the   plaintiffs 
were  without  adequate  means  of  redress,  unless  by  action,  for 
failing  to  deliver  the  quantity  of  oil  sold  conforming  to  the 


IN    I'EKSONALTV — SALES.  301 

sample.)  The  fact  that  tho  oil,  which  was  the  subject  of  the 
sale,  was  understood  by  the  ]»laiiiti(ls  to  he  a  jiarcel  of  a  larger 
quantity,  and  that  the  sale  was  madi-  at  a  jirofit  of  oidy  two 
cents  per  gallon,  w  hile  the  risk  of  loss  hy  leakage  and  evapora- 
tion was  very  large,  are  circumstances  that  would  go  tar  to 
prove  that  the  defendants  did  not  understand  the  legal  import 
of  the  writing  drawn  and  subscribed  by  them,  or  that  they 
were  overreached  by  the  iilaintills,  who  suggested  their  terms 
after,  as  one  of  tliem  liad  testiticnl,  they  refused  to  purchase, 
unless  the  defendants  would  guarantee  them  against  leakage, 
which  the  defendants  refused  to  do.  But  as  no  question  was 
raised  by  the  pleadings,  or  elsewhere,  as  to  a  reformation  of 
the  contract,  we  must  regard  it  as  expressing  the  intentions  of 
the  parties  and  give  it  the  interpretation  which,  under  the 
circumstances,  its  language  plaiidy  imports.  The  charge  was 
more  favorable  to  the  defendants  than  a  fair  construction  of  the 
written  contract  warranted.  The  conversations  out  of  which 
the  defendants  sought  to  establish  an  agreement  between  the 
parties  that  the  defendants  might  set  apart  the  100  barrels  of 
oil  for  the  plaintiffs,  as  well  as  the  conversations  as  to  the 
guaranty  against  loss  by  leakage,  were  all  prior  to  the  reduc- 
tion of  their  agreement  to  writing  and  should  have  been  ex- 
cluded from  the  consideration  of  the  jury,  leaving  the  writinor 
as  the  only  evidence  of  the  agreement  to  be  interpreted  by  the 
aid  of  extrinsic  facts.  Xo  error  was  committed  in  the  instruc- 
tions to  allow  interest.  The  verdict  was  more  favorable  to  tlie 
defendants  than  the  charge  warranted  ;  of  that,  however,  they 
cannot,  upon  this  appeal,  complain. 

The  order  appealed  from  should  be  reversed. 

All  concur.     Order  reversed. 

DARLINGTON,  P.  P.,  77-80. 


IIaiin  v.  Fredericks. 

Supreme  Court  of  Michigan,  1874. 

30  Mich.  223. 

Campbell,  J.     Fredericks  sued  the  llahns  to  recover  the 
price  of  certain  wood  which  was  destroyed  by  tire  before  it  had 


302  ILLUSTRATIVE    CASES 

been  removed  by  the  purchasers.    The  only  question  is  whethei 
the  sale   hud  been  completed  and  the  title  passed  before  the 

tire. 

The  wood  bargained  for  was  two  hundred  cords  of  hard  wood 
out  of  a  i>ile  of  between  three  hundred  and  tifty  and  four  hun- 
dred cords,  in  which  was  a  small  amount  of  soft  wood,  not 
piled  by  itself,  but  scattered  through  the  other  wood.  It  was 
all  piled  in  tiers  upon  Portage  Lake,  the  six  rows  nearest  the 
lake  containing  by  original  measurement  about  two  hundred 
and  one  cords,  of  which  it  was  estimated  there  were  eleven  or 
twelve  cords  of  soft  wood.  It  is  claimed  that  by  the  terms  of 
purchase  two  hundred  cords  were  to  be  taken  from  the  first  six 
tiers,  and  the  seventh  tier,  to  be  removed  by  the  purchasers 
after  tlie  opening  of  navigation,  and  to  be  measured  by  the 
purchasers.  The  price  was  fixed  at  three  dollars  and  eighty 
cents  per  cord.  The  purchasers  declined  to  take  it  at  the  orig- 
inal measurement. 

In  the  spring,  when  there  was  some  danger  of  the  wood 
nearest  the  lake  floating  of}",  the  evidence  tends  to  show  that 
Fredericks  informed  Hahns  of  the  danger,  and  at  their  request 
procured  two  scowloads  to  be  taken  to  Houghton  to  their 
dock,  at  their  expense.  It  was  measured  when  unloaded,  and 
they  took  both  hard  and  soft— the  latter  at  a  less  price.  The 
remainder  was  burned  shortly  after  by  an  extensive  fire  that 
ran  through  that  neighborhood  in  June,  1873. 

The  action  was  not  brought  for  the  breach  of  an  executory 
bargain,  but  to  recover  tlje  price  of  the  wood  upon  a  completed 
sale;  arid  the  jury  found  for  plaintiff  below  on  that  theory. 
Both  parties  stand  in  equal  equities,  and  the  decision  of  the 
cause  rests  upon  the  question  of  law. 

The  facts  upon  which  there  is  no  variance  were,  Jirst^  that 
the  price  was  fixed  ;  second^  the  number  of  cords  to  be  taken  ; 
third,  that  the  purchasers  were  to  remove  it ;  fourth,  that  they 
were  not  to  take  the  soft  wood ;  fifth,  that  the  hard  wood  was 
to  be  measured  on  the  scow  as  removed  from  the  piles  ;  and, 
sixth,  that  until  such  measurement  it  could  not  be  ascertained 
how  much  of  the  seventh  pile  would  be  needed. 

The  jury,  in  answer  to  a  charge  and  question,  found  that 
plaintiff  gave  defendants  below  possession  of  the  seven  piles 


IN    PERSONALTY — SALES.  303 

nearest  the  lake;  but  there  is  nothing  in  tlie  testimony  that 
legally  tends  to  show  any  sucli  thing,  any  further  than  it  might 
be  inferred  from  the  agreement  that  they  would  liave  a  right 
to  take  the  wood  therefrom.  No  actual  or  symbolical  pos- 
session is  shown  to  have  been  given  or  taken.  Xor  is  it 
clear  that  this  would  signily,  in  the  absence  of  other  important 
facts. 

The  {)riiicipal  question  in  the  case  seems  to  be  whether  the 
sale  actually  attached  to  any  two  hundred  cords  which  could 
be  identitied  before  the  lire. 

It  is  not  claimed,  and  there  is  nothing  to  warrant  the  notion, 
that  the  contract  was  intended  to  be  severable,  or  to  attach  to 
any  thing  less  than  two  hundred  cords  of  liard  wood,  and  of 
no  other  wood.  There  was  no  sale  of  the  first  six  piles  as  they 
stood,  or  of  the  hard  wood  in  the  first  six  piles,  independent  of 
so  much  more  as  would  fill  up  the  measure. 

Until  an  actual  measurement,  which  was  to  be  made  when 
the  hard  wood  was  removed  from  the  piles  and  as  it  was 
placed  on  the  scows,  it  is  evident  that  there  could  be  no  parcel 
identified  to  which  a  sale  could  attach  as  complete.  It  was 
a  bargain  for  a  parcel  yet  to  be  measured  out  of  a  larger 
parcel  of  various  qualities,  and  of  an  extent  not  determined. 
The  original  measurement  was,  under  this  contract,  of  no  im- 
portance. 

We  have  found  no  authority  which  recognizes  such  a  trans- 
action as  a  completed  sale.  It  was  not  a  sale  in  gross  of  an 
entire  parcel  of  wood,  where  the  measurement  was  only  neces- 
sary to  ascertaiii  the  quantity,  as  in  Adams  Mining  Co.  v.  Sen- 
ter,  26  Mich.  73.  Here  the  measurement  was  necessary  to 
complete  the  identiiication  and  to  determine  what  wood  was 
to  belong  to  the  purchaser.  Under  such  an  arrangement  it  is 
well  settled  that  no  title  passes  to  any  }iortion  of  the  iirojicrty 
until  it  has  been  measured  and  thus  identitied  and  severed  I'roni 
the  rest:  Dunlap  v.  Berry,  4  Siani.  327;  Courtright  v.  Leonard, 
11  Iowa,  32  ;  Young  v.  Austin,  G  Pick.  280  ;  :Merrill  r.  llunne- 
well,  13  LI.  213  ;  .Alason  v.  Thompson,  18  Id.  305  ;  Scudder  v. 
Worster,  11  Gush.  573;  Simmons  v.  Swift,  5  B.  &  C.  857,  11 
Eng.  Com.  Law  ;  Rugg  v.  Minett,  11  E.  210  ;  Shepley  v.  Davis, 
5  Taunt.  617,  1  Eng.  Com.  Law. 


30-t 


ILLUSTRATIVE    CASES 


This  case  is  distinguishable  in  some  respects  tVom  any  case 
heretofore  decided  by  this  Court,  but  rather  by  its  facts  than 
by  the  principles  involved.  The  requisites  for  a  completed 
sale  have  been  somewhat  considered  in  Whitcomb  v.  Whitney, 
24  Mich.  R.  -186,  and  Adams  Mining  Co.  v.  Senter,  26  Id.  73, 
where  title  passed  to  property  idcntitied  ;  in  Lingham  v.  Eg- 
gleston,  27  Mich.  324,  where  it  was  held  not  to  pass  to  pro- 
perty identitied  in  gross,  because  not  inspected  and  identified 
by  quality  and  quantity,  which  were  necessary  to  fix  prices; 
and  in  Ortman  v.  Green,  26  Mich.  R.  209,  and  First  National 
Bank  of  Marquette  v.  Crowley,  24  Id.  492,  where  there  was  no 
sufiicient  identification,  and  therefore  no  title  given. 

There  seems  to  be  no  foundation  anywhere  for  declaring  any 
thing  to  be  a  completed  sale  where  the  property  is  to  be  sub- 
sequently identified  by  separation  and  measurement  out  of  a 
larger  quantity,  and  cannot  be  known  till  so  measured. 

As  the  property  was  destroyed,  it  is  simply  a  controversy  as 
to  who  shall  bear  the  loss.  Several  of  the  cases  cited  on  the 
argument  arose  out  of  similar  misfortunes,  and  it  is  clear  it 
must  fall  on  the  actual  owner,  whose  rights  cannot  be  enlarged 
or  diminished  by  the  accident. 

The  judgment  below  must  be  reversed,  with  costs,  and  a 
new  trial  granted. 


Where  there  is  a  sale  of  a  speci- 
fied quantity  of  grain  from  a  mass, 
identical  in  kind  and  uniform  in 
value,  a  separation  of  the  quantity 
sold  is  not  necessary  to  pass  the 
title,  where  the  intention  of  the 
parties  that  the  title  should  pass 
by  the  contract  of  sale  is  clearly 
manifested  ;  otherwise  where  the 
articles   composing   the  mass   are 


of  different  quantities  and  values, 
making  a  selection,  and  not  merely 
a  separation,  necessary. 

Hurff  V.  Hires,  40  N.  J.  Law,  581 ; 

Bailey  v.  Loreg,  24  Kansas,  90  ; 

Bailey  r.  Smith,  43  N.  II.  141  ; 

Galloway  v.  Week,  54  Wis.  G04  ; 

Randolph  Iron  Co.  i'.  Elliott,  34 
N.  J.  Law,  184. 


IN    PERSONALTY — SALES.  305 

Other   acts    to    be   performed   by    the    Seller. 

Foster  v.  Ropes. 

Supreme  Judicial  Court  of  Massachusetts,  1872. 

Ill  Mass.  10. 

Colt,  J.  Under  the  instructions  given,  the  jury  were  allowed 
to  find  that  the  sale  of  all  the  fish  was  completed,  so  as  to  pass 
the  title  to  the  defendant,  on  April  15th,  the  day  when  the  con- 
tract of  sale  was  entered  into.  This  action  is  to  recover  the 
price  of  the  whole,  as  for  goods  sold  and  delivered. 

The  defendant  asked  the  Court  to  rule,  upon  all  the  evidence, 
that  there  was  no  sale  at  that  time,  and  that,  under  a  count 
for  goods  sold  and  delivered,  the  jilaintift"  could  not  recover  for 
the  fish  which  remained  in  Beverly  after  the  400  (piintals  were 
taken  away  hy  him.  This  ruling  was  refused,  and  the  j:iry 
were  told,  in  substance,  that  the  plaintitt' could  not  recover  i'or 
the  fish  in  Beverly,  if  anything  remained  to  be  done  to  tliem 
by  the  plaintitf  after  the  agreement  of  April  15th,  unless  they 
were  satisfied  that  it  was  the  intention  and  agreement  of  the 
parties  that  the  sale  should  be  comi)lete  and  that  the  title 
should  pass  at  tliat  time.  The  point  made  by  the  defendant 
is,  that  the  last  part  of  this  instruction  was  not  supported  by 
the  evidence,  and  was  calculated  to  prejudice  his  rights,  even 
if  correct  as  an  abstract  proposition,  and  as  ap[)licable  to  a 
diflerent  state  of  facts  ;  and  we  are  of  opinion  that  the  objection 
is  well  taken. 

In  the  sale  of  personal  property,  the  general  rule  of  law  is, 
that  when,  by  the  terms  of  the  contract,  the  seller  agrees  to  do 
any  thing  for  the  purpose  of  putting  the  property  into  a  state 
in  which  the  buyer  is  bound  to  accept  it,  or  into  a  condition 
to  be  delivered,  the  title  will  remain  in  him  until  he  has  per- 
formed the  agreement  in  this  respect.  In  Rugg  v.  Minett,  11 
East,  210,  where  a  quantity  of  turpentine  in  casks  was  sold  in 
lots  at  so  much  per  hundred  weight,  it  was  hehl  that  the  ]^vo- 
perty  had  passed  in  those  lots  only  in  which  the  casks  had 
been  filled  up  as  agreed,  because  as  to  them  oidy  had  everything 


306  ILLUSTRATIVE    CASES 

been  done  by  the  sellers  which  lay  upon  iheiii  to  put  the 
goods  ill  a  deliverable  state.  And  see  also  Acrauian  v.  Morriee, 
8  C.  B.  449,  65  Eng.  Com.  Law  ;  Morse  v.  Sherman,  106  ]\hiss. 
430. 

This  general  rule  will  not  prevail  where,  by  the  terms  of 
the  agreement,  the  title  is  to  vest  immediately  in  the  buyer, 
notwithstanding  something  remains  to  be  done  to  the  goods 
by  the  seller  after  delivery.  Thus  in  Riddle  v.  Varnum,  20 
Pick.  280,  it  was  held  that  the  jury,  where  there  was  evidence 
of  such  intention,  might  infer  a  delivery  to  the  buyer  sufficient 
to  vest  the  title,  although  something  remained  to  be  done  by 
the  seller;  while  the  general  doctrine  above  stated,  in  cases 
where  there  is  no  evidence  of  intention  to  complete  the  sale 
and  pass  the  title,  is  fully  affirmed.  And  in  Turley  v.  Bates, 
2  H.  &  C.  200,  it  was  said  that  the  Court  must  look  to  the  in- 
tention, as  drawn  from  the  terms  of  the  contract,  in  order  to 
determine  whether  title  to  the  property  immediately  passed  : 
Young  V.  Matthews,  L.  R.  2  C.  P.  127;  Story  on  Sales, 
§  298  a. 

In  all  cases,  however,  the  intention  of  the  parties  as  to  the 
time  when  the  title  is  to  pass  can  be  ascertained  only  from  the 
terms  of  the  agreement,  as  expressed  in  the  language  and  con- 
duct of  the  parties,  and  as  applied  to  known  usage  and  the  sub- 
ject-matter. It  must  be  manil'ested  at  the  time  the  bargain  is 
made.  The  rights  of  the  parties  under  the  contract  cannot  be 
affected  by  their  undisclosed  purposes,  or  by  their  understand- 
ing of  its  legal  effect. 

In  the  case  at  bar,  it  was  not  in  dispute  at  the  trial  that,  by 
the  contract  of  April  15th,  the  fish  was  to  be  put  on  flakes  and 
further  dried  by  the  plaintiff,  and  afterwards  weighed  by  him 
for  the  purpose  of  ascertaining  the  quantity  and  price.  This 
was  to  be  done  for  the  purpose  of  fitting  the  goods  for  delivery. 
By  the  getieral  rule,  therefore,  the  property  not  actually  taken 
away  by  the  defendant  remained  in  the  plaintiff,  unless  there 
is  evidence  w^hich  would  justify  the  jury  in  finding  that  by 
further  ao:reement,  notwithstanding  this  feature  of  the  contract, 
the  title  was  to  pass  immediately  to  the  defendant.  We  can 
find  no  evidence  of  such  agreement  in  the  case  stated.  All 
that  was  said  and  done  on  April  15th  is  consistent  with  an 


IN    PEHSONALTY — SALES. 


307 


intention  to  leave  the  title  in  the  plaintilV  until  the  lish  were 
fully  cured,  weighed, and  delivered,  according  to  the  general 
rule  of  law  ;  and  there  is  nothing  to  vary  the  application  of 
that  rule.  The  letters  subsequently  written  by  the  defendant 
do  not  seem  to  us  to  contain  any  thing  which  amounts  to 
an  admission  of  such  an  agreement ;  nor  were  the  statements 
in  the  letters  written  to  him  by  the  plaintiff  of  such  a  char- 
acter that  his  silence  in  regard  to  them  can  be  construed  into 
an  implied  admission. 

The  plaintiff  further  claimed,  at  the  argument,  that  the  bill 
of  exceptions  itself  shows  that  all  the  evidence  bearing  on  this 
point  is  not  reported.  But  the  record,  after  reciting  the  evi- 
dence and  its  bearing  on  the  point,  states  that  "  upon  all  the 
evidence"  the  ruling  asked  for  by  the  defendant  was  refused. 
This  means  that  tlie  purport  of  all  the  evidence  in  the  case, 
bearing  upon  the  point  raised,  is  stated  ;  and  implies  that  noth- 
ing is  omitted  which  the  Judge  deemed  material. 

The  instructions  given  upon  the  question  of  the  delivery  of 
the  fish  which  remained  in  Beverly,  not  being  such  as  the 
defendant  upon  his  request  was  entitled  to,  a  new  trial  must 
be  had  unless  the  plaintiff  remits,  and  takes  judgment  only  for 
the  400  quintals,  at  the  price  agreed,  which  were  actually 
taken  by  him.  And  in  ease  of  a  new  trial,  as  the  alleged 
breach  of  warranty  has  been  found  for  the  plaintiff'  on  the 
issues  already  tried,  and  no  other  question  is  made  as  to 
the  defendant's  liability  for  the  goods  actually  removed,  the 
trial  must  be  confined  to  the  single  point  raised  by  these  ex- 
ceptions. 

Exceptions  sustained. 


Pike  v.  Vaughn,  39  Wis.  499  ; 

Dixon  1-.  Myers,  7  Gratt.  "240 ; 

Tliompson  v.  Conover,  32  N.  J, 
Law,  466  ; 

Maloiie  V.  Minn.  Stone  Co.,  'Sij 
Minn.  325 ; 

Dyer  v.  Libby,  61  Maine,  45  ; 

Gilbert  v.  N.  Y.  C.  Ey.,  4  IIuu, 
378; 


Thompson  v.  Libby,  35  Minn. 
443; 

Hooper  V.  Chi.  &  X.  AV.  Ry.,  27 
Wis.  81  ; 

Martin  i-.  Iluilbut,  9  Minn.  142; 

Dodize  V.  Rogers,  9  Minn.  223  ; 

Keeler  v.  Vanderverc,  5  Lansing, 
313  ; 

Kein  v.  Tupper.  52  X.  Y.  550  ; 

Bagole  r,  MtKinzic,  26  Micli.  470. 


308  ILLUSTKATIVE    CASES 


Acts   to   be   performed   by    the  Vendee. 

Fletcher  v.  Livingston. 

Supreme  Judicuil  Court  of  Massachusetts,  1891. 

153  Mass.  388. 

Knowlton,  J.  It  is  well  settled  that  a  contract  like  that 
relied  on  by  the  plaintiff  does  not  immediately  pass  a  title  to 
property,  and  is  not  a  sale  or  a  contract  for  a  sale  of  an  interest 
in  land,  but  an  executory  agreement  for  the  sale  of  chattels,  to 
take  effect  when  the  wood  and  timber  are  severed  from  the 
land,  with  a  license  to  enter  and  cut  the  tress  and  remove 
them.  Such  a  contract,  if  oral,  is  not  within  the  Statute  of 
Frauds,  and  its  construction  is  the  same  as  if  it  were  in  writing : 
Clafiin  v.  Carpenter,  4  Met.  580 ;  Giles  v.  Simonds,  15  Gray, 
441;  Drake  v.  Wells,  11  Allen,  141 ;  Hill  v.  Hill,  113  Mass. 
103,  105  ;  United  Society  v.  Brooks,  145  Id.  410.  The  subject 
was  fully  considered  by  Chief  Justice  Bigelow,  in  Drake 
V.  Wells,  ubi  supra,  and  was  discussed  in  the  earlier  case  of 
Giles  V.  Simonds,  and  it  was  held  that  a  purchaser  of  standing 
wood  and  timber,  after  severing  the  trees  from  the  land,  has 
an  irrevocable  license  to  enter  and  remove  them,  but  that  before 
they  are  cut  his  license  may  at  any  time  be  revoked  by  the 
landowner,  leaving  him  no  remedy  but  an  action  to  recover 
damages  for  the  breach  of  the  contract. 

In  the  present  case  the  declaration  contains  three  counts. 
The  first  two  are  founded  on  the  plaintifiF's  alleged  ownership 
of  the  wood  and  timber  as  chattels.  But  she  had  no  ownership 
so  long  as  the  trees  remained  attached  to  the  realty,  and  her 
action  cannot  be  maintained  on  either  of  these  two  counts.  The 
third  is  for  trespass  quare  clausmn.  The  plaintiff  by  her  con- 
tract acquired  no  interest  in  the  land,  and  she  was  not  in  pos- 
session, and  she  cannot  maintain  an  action  of  trespass.  It 
does  not  appear  that  there  was  any  breach  of  contract  on  the 
part  of  either  of  the  defendants  ;  but  if  there  were,  the  plain- 
tifii's  remedy  would  be  in  another  form  of  action. 

The  evidence  excluded  was  immaterial.  The  plaintiff  is  not 
shown  to  have  had  any  such  interest  in  the  realty  as  to  give  her 


IN    PERSONALTY — SALES.  309 

a  right  to  pay  the  dehts  of  the  intestate  for  the  purpose  of  pre- 
venting a  sale  of  tlie  land,  or  to  enable  her  to  call  in  question 
the  administrator's  conduct  in  advertising  the  sale.  If  no  sale 
had  been  made,  the  lieirs-at-law  might  lawfully  have  prevented 
her  from  entering  upon  the  land. 
Exceptions  overruled. 

Gamble  v.  Gates,  56  N.  W.  Rep.  855. 


Acts    to    be    performed    by    both    parties. 

Prescott  v.  Locke. 

Supreme  Judicial  Court  of  Xew  Hampshire,  1871. 

51  N.  II.  94. 

Statement  of  facts:  The  plaintiff  sold  defendant  100,000 
walnut  spokes,  at  $40  per  thousand,  which  spokes  were  to  be 
sawed  by  the  plaintiff  and  delivered  to  the  defendant  in  lots  of 
ten  thousand  each.  But  before  delivery  plaintiff  understood 
that  he  was  to  count  the  spokes  delivered,  and  the  defendant 
also  understood  that  they  were  to  count  them  before  taking 
them  from  the  mill.  The  first  lot  of  ten  or  twelve  thousnnd 
was  selected  by  plaintiff  and  piled  up,  but  not  counted  by  the 
defendant.  The  plaintiff  afterwards  counted  the  selected  pile 
and  charged  them  to  the  defendant,  but  before  they  were 
counted  or  removed  by  the  defendant  they  were  burned  with 
the  mill. 

Foster,  J.  The  contract  in  this  case  was  not  for  the  plain- 
t'lfTs  labor,  but  was  for  the  sale  of  merchandise  to  be  subse- 
quently manufactured. 

It  was  not  a  contract  to  make  spokes  for  the  defendants  ;  but 
it  was  an  agreement  that  the  defendants  "  would  buy  of  the 
plaintiff  what  walnut  spokes  he  should  saw  at  his  mill,  at  $40 
per  thousand"  for  the  manufactured  article. 

Where  the  contract  is  for  a  chattel  to  be  made  and  delivered 
it  clearly  is  a  contract  for  the  sale  of  goods.  In  such  case  the 
party  supplying  the  chattel   catniot  recover  for  his  labor  in 


310  ILLUSTRATIVE    CASES 

makiner  it.  If  the  contract  be  such  that  when  carried  out  it 
would  result  in  the  sale  of  a  chattel,  the  party  cannot  sue  for 
labor ;  but  if  the  result  of  the  contract  is  that  the  party  has 
done  -work  and  labor  which  end  in  nothing  that  can  become 
the  subject  of  a  sale,  the  party  cannot  sue  for  goods  sold  and 
delivered.  Tlie  case  of  an  attorney  employed  to  prepare  a 
deed  is  an  illustration  of  this  hitter  proposition.  It  caiuiot  be 
said  that  the  paper  and  ink  he  uses  in  the  preparation  of  the 
deed  are  goods  sold  and  delivered.  Per  Blackburn,  J.,  in  Lee 
V.  Griffin,  1  Ellis,  Best  &  Smith,  272,  101  Eng.  Com.  Law. 

Illustrations  of  the  former  proposition  are :  Where  a  carriage 
was  ordered  to  be  made,  which  would  never,  but  for  the  order, 
have  had  an  existence,  but  when  made  becomes  the  subject  of 
sale.  This  principle  has  been  applied  even  to  a  contract  for  • 
the  making  of  a  coat,  a  statue,  a  set  of  artificial  teeth,  from 
materials  provided  by  the  maker,  even  where  the  peculiar 
skill  of  the  maker  is  considered  to  be  an  important  element  in 
the  consideration  of  the  contract ;  for  the  value  of  the  skill 
and  labor,  as  compared  with  that  of  the  Tnaterial  supplied,  is 
not  a  criterion  to  determine  what  the  contract  is. 

The  true  construction  in  this  case  is,  that  the  contract  was 
for  the  future  sale  of  the  spokes,  when  they  should  be  in  a 
state  fit  for  delivery.  The  vendor,  so  long  as  he  was  sawing 
the  timber  and  doing  any  other  work  prejiaring  it  for  delivery 
in  the  form  of  spokes,  w^as  doing  work  for  himself  upon  his 
own  materials,  and  not  for  the  defendants:  Smith  v.  Surman, 
9  B.  &  C.  561,  17  Eng.  Com.  Law. 

Where  the  contracting  parties  contemplate  a  sale  of  goods, 
although  the  subject-matter  at  the  time  of  making  the  contract 
does  not  exist  in  goods,  but  is  to  be  converted  into  that  state  by 
the  vendor's  bestowing  labor  on  his  own  raw  materials,  that  is 
a  case  of  a  contract  for  sale,  within  the  Statute  of  Frauds: 
Garbutt  v.  Watson,  5  B.  &  A.  612 ;  Smith  v.  Surman,  before 
cited. 

This  was  a  contract  for  the  purchase  of  such  waln\it  spokes 
as  the  plaintiff  should  saw  at  his  mill,  not  exceeding  100,000, 
to  be  delivered  at  the  mill  in  lots  of  about  10,000  each,  subject 
to  the  defendants'  selection.  It  would  be  absurd  to  say  that 
the   defendants  were   to    select   the   spokes   before   they  had 


IN    PERSONALTY — SALES.  311 

become  the  subject  of  sale,  prepared,  by  the  previous  work 
of  the  vendor,  for  the  market.  The  plaintifi'  was  to  conveit 
the  timber  into  spokes,  and,  when  so  converted,  the  delivery 
and  acceptance  thereof  were  to  occur.  Until  that  time  the 
contract  would  remain  executory,  and  the  title  to  the  property 
would  continue  to  be  in  the  plaintitf.  If  the  plaintift"  had 
caused  or  permitted  the  spokes  to  be  improperly  or  imperfectly 
manufactured,  or  to  l>e  made  from  other  than  good  walnut  tim- 
ber, the  defendants  would  not  have  been  bound  to  acce[it  or 
pay  for  them :  Gorham  v.  Fisher,  30  Vt.  428. 

Still  the  [)laiutiif  would  not  necessarily  lose  the  price  of  liis 
labor.  If  the  jjurchastn-  ilid  not  take  the  goods,  others  proba- 
bly would.  The  labor  bestowed  on  them  was  in  the  line  of 
his  business,  and  we  may  reasonably  infer  that  his  labor  would 
have  been  bestowed  in  the  production  of  such  goods  had  the 
contract  not  been  made:  Cason  v.  Cheely,  6  Geo.  554. 

It  is  very  clearly  settled  bj'  the  more  recent  English  and 
American  cases,  that  it  is  not  essential  that  the  goods  be 
capable  of  delivery  at  the  time  of  making  the  contract,  to 
bring  it  within  the  Statute  of  Frauds:  Pitkin  v.  Xoyes,  48  X. 
H.  298  ;  Finney  v.  Apgar,  31  X.  J.  266. 

In  Pitkin  v.  Xoyes,  it  is  said,  "  If,  however,  a  person  con- 
tract to  make  and  deliver,  at  a  future  time,  certain  goods  at 
prices  then  fixed,  or  at  reasonable  prices,  the  essence  of  the 
agreement  being  that  he  will  bestow  his  own  labor  and  skill 
upon  the  manufacture,  it  is  heUl  not  to  be  within  the  statute  ;'" 
and  such  is  undoubtedly  the  law.  In  that  case  it  was  deemed 
proper  to  leave  it  to  the  jury,  in  view  of  all  the  circumstances 
of  the  case,  to  find  whether  the  contract  was  essentially  for  the 
labor  and  materials  of  the  defendant  in  raising  the  potatoes,  so 
that  he  was  bound  himself  to  raise  them,  or  whether  it  was 
substantially  a  sale  of  potatoes  wliich  he  might  raise  himself, 
or  procure  by  purchase  or  otherwise.  The  remark  of  the 
Court  that  "it  is  obvious  that  the  plaintifis  might  have  an 
interest  in  stipulating  that  the  defendant  should  himself  i-aise 
the  potatoes"  preceded  this  dis[>osition  of  tlie  case,  and  the 
considerations  suggesting  that  remark  a[»i>arently  controlled 
tlie  disposition  of  it. 

We  untlerstand  the  expression  quoted  from  Pitkin  v.  Xoyes 


312  ILLUSTRATIVE    CASES 

to  mean,  not  precisely  what  is  literally  imported  by  it,  but 
rather  that  it  might  be  obvious  that  the  plaiutitls  might  have 
an  interest  in  stipulating  that  the  potatoes  should  be  raised 
upon  the  defendant's  land,  which  might  be  regarded  as  pecu- 
liarly adapted  to  the  raising  of  potatoes  of  a  superior  quality. 
And  if  that  be  the  construction  to  be  given  to  the  remark,  the 
consideration  and  the  result  were  well  enough. 

But  in  the  present  case,  it  appears  that  it  was  no  part  of  the 
essence  of  the  contract  that  the  plaintiff  should,  with  his  own 
hands  and  by  the  exercise  of  his  own  peculiar  skill,  manufac- 
ture these  spokes,  which  the  defendants  were  only  bound  to 
take  after  they  had  been  culled  out  and  selected  by  themselves. 

This  being  a  contract  for  the  sale  of  chattels,  w^e  come,  then, 
to  the  question  whether  there  was  such  a  delivery  and  accept- 
ance of  the  spokes  as  transferred  the  property  and  title  from 
the  plaintiff  to  the  defendants ;  for  it  is  conceded  that  there 
was  no  part  payment,  earnest,  or  memorandum  given,  within 
the  terms  of  the  Statute  of  Frauds:  Gen.  Stats.,  eh.  201,  sec. 
14.  And,  therefore,  the  plaintifi"  cannot  maintain  assumpsit 
founded  upon  the  contract,  either  for  goods  bargained  and 
sold,  or  for  goods  sold  and  delivered,  without  showing  such 
delivery  and  acceptance  as  shall  be  sufficient  to  take  the  case 
out  of  the  operatian  of  the  statute. 

In  his  chapter  entitled  "At  whose  risk  the  thing  sold  is, 
during  the  intermediate  time  between  the  contract  and  the 
delivery,"  M.  Pothier  discourses  as  follows:  "Having  estab- 
lished the  principle  that  the  thing  sold  is  at  the  risk  of  the 
buyer  as  soon  as  the  contract  is  perfected,  it  becomes  necessary 
to  inquire  when  the  contract  receives  its  perfection ;  and  gene- 
rally, the  contract  of  sale  is  considered  to  be  perfect  as  soon 
as  the  parties  are  agreed  upon  the  price  for  which  the  thing  is 
sold. 

"This  rule  holds  when  the  sale  is  of  a  specific  thing,  and  is 
absolute  {pure  et  simple) :  si  id,  quod  venierit  appareat  quid,  quale, 
quantum  sit,  et  pretium,  et  pure  venit  ;  perfecta  est  e7np)tio. 

"If  the  sale  is  of  things  which  consist  in  quantitate,  and  which 
are  sold  by  weight,  number,  or  measure — as,  if  one  sells  ten 
casks  of  the  corn  which  is  in  a  certain  granary,  ten  thousand 
pounds  of  sugar,  or  one  hundred  carp,  etc. — the  sale  is  not  per- 


IN    PERSONALTY — SALES.  313 

feet  until  the  com  is  iiieasured,  tlie  sugar  weighed,  or  the  carp 
counted;  for,  until  such  time,  vondina  (ijqxiret  quid  venierit. 

"  It  does  not  yet  appear  which  is  the  corn,  which  is  the  sugar, 
or  the  carp,  that  makes  the  ohject  of  the  sale,  since  that  ohJL'c-t 
can  only  be  the  corn  that  is  to  be  measured,  the  sugar  that  is 
to  be  weighed,  or  the  carp  that  are  to  be  counted. 

"It  is  true  that  before  the  ineaHuring,  weighing,  or  counting, 
and  at  the  instant  of  the  contract,  the  engagements  which  re- 
sult from  it  exist.  The  buyer  is  then  entitled  to  an  action 
against  the  seller  for  a  delivery  of  the  thing,  and  the  seller  is 
entitled  to  an  action  against  the  buyer  for  a  recovery  of  the 
price,  upon  offering  to  deliver  it.  [It  will  be  borne  in  mind 
that  the  author,  treating  of  the  civil  law,  is  not  embarrassed 
b}'  the  consideration  of  the  Statute  of  Frauds.]  But,  though 
the  engagement  of  the  seller  subsists  from  that  time,  it  may  bo 
truly  said  that  it  is  not  yet  perfect,  in  this  respect,  that  as  yet 
it  is  only  an  object  which  is  indeterminate,  and  which  can  be 
determined  only  by  the  measuring,  weighing,  or  counting.  For 
this  reason,  until  the  thing  is  measured,  weighed,  or  counted, 
it  does  not  become  at  the  risk  of  the  Iniyer;  for  the  risk  can- 
not fall  but  upon  some  determinate  thing. 

"This  rule  holds,  not  only  when  the  sale  is  of  a  certain 
quantity  of  merchandise,  to  be  taken  from  a  magazine  which 
contains  a  larger  quantity,  because,  in  such  a  case,  as  we  have 
seen,  until  the  measuring  or  weigliing,  that  which  is  sold  does 
not  consist  of  any  determinate  body  or  thing  upon  which  the 
risk  may  fall ;  it  also  holds  when  the  sale  is  of  the  entire  quan- 
tity contained  in  a  magazine  or  granary,  provided  it  is  made 
at  the  rate  of  so  much  the  pound,  or  so  much  the  measure,  etc. 

"The  sale  in  this  case  is  not  considered  as  perfect,  and  the 
thing  sold  is  not  at  the  risk  of  the  buyer,  until  it  is  measured 
or  weighed  ;  for,  until  that  time,  no7i  apparct  quantum  venierit. 
The  price,  being  constituted  only  for  each  pound  which  shall 
be  weighed,  or  for  each  cask  which  shall  be  measured,  is  not 
yet  determined,  before  the  weighing  or  measuring;  and  conse- 
quently the  sale,  before  that  time,  is  not  so  far  perfect  that  the 
risk  of  the  thing  may  fall  upon  the  buyer.  lie  ought  not  to 
be  charged  with  it  until  after  the  goods  are  weighed  or 
measured. 


ol4  ILLUSTRATIVE    CASES 

"But  if  the  goods  are  not  sold  by  weight  or  measure,  but 
jper  aversionem,  that  is,  in  bulk,  and  for  a  single  and  only  price 
— in  such  case  the  sale  is  perfect  from  the  instant  of  the  con- 
tract, and  from  that  time  these  goods,  the  same  as  all  others, 
are  at  the  risk  of  the  buyer." 

The  learned  writer  then  proceeds  to  lay  down  certain  rules 
for  determining  when  the  sale  is  considered  as  made  'per  aver- 
sionem,  and  when  by  measure  ;  and  in  the  latter  category  he 
places  the  case  where  the  price  is  expressly  agreed  upon  for 
each  measure ;  "  whether  the  contract  imports  that  it  is  of  so 
many  bushels  of  the  grain  in  such  a  granary,  at  the  rate  of  so 
much  the  bushel,  or  of  a  heap  of  grain,  which  is  in  such  a 
granary,  and  which  contains  a  thousand  bushels,  at  the  rate  of 
so  much  a  bushel." 

The  sale  is  considered  to  be  made  per  aversionem  "  when  it  is 
made  for  a  single  price,  not  of  so  many  measures  of  such  a 
thing,  but  of  such  a  thing  which  is  declared  to  contain  so  many 
measures." 

In  such  case  the  expression  of  the  number  has  no  other 
eftect  than  to  oblige  the  seller  to  make  an  allowance  for  the 
defect  of  quantity  :     Pothier  Contr.  of  Sale,  sees.  309,  310. 

Tried  by  these  tests,  which  we  believe  to  be  sound,  it  is 
(juite  clear  that  the  contract  before  us  was  for  a  sale  by  meas- 
ure or  count,  and  not  a  sale  per  aversionem  ;  and  that  the  spokes 
were  at  the  risk  of  the  seller  until  the  sale  was  perfected,  which 
could  not  be  so  long  as  non  apparet  quantum  veniet. 

!N^ow  the  question  here  is.  Was  this  sale  perfected,  so  as  to 
pass  the  title  to  and  impose  the  risk  upon  the  purchaser? 

Whatever  may  have  been  the  intention  or  understanding  of 
either  party,  or  of  both,  it  must  be  controlled  by  the  Statute 
of  Frauds.  The  statute  is  highly  beneficial,  indispensable  in- 
deed ;  and  it  must  receive  a  fixvorable  and  liberal  construction, 
ut  sit  finis  litium^  and  to  prevent  perjury,  and  the  mistakes 
and  dangers  resulting  from  evidence  founded  on  imperfect 
memory. 

By  the  terms  of  the  statute,  in  the  absence  of  part  payment 
or  a  written  memorandum,  the  buyer  must  "accept  and 
actually  reecive"  the  property,  it  follows,  therefore,  that  al- 
though, as  a  matter  of  fact,  in  a  particular  case,  there  may  be 


IN    PERSONALTY — SALES.  315 

acceptance  without  delivery,  or  delivery  and  reception  without 
acceptance,  both  conditions  must  be  fulfilled  before  the  title 
and  risk  can  be  transferred.  And  the  acceptance  must  be  clear 
and  unequivocal :  Xicholle  v.  Plume,  1  C.  &  P.  272,  12  Eug. 
Com.  Law. 

Ill  this  case,  the  culling  of  the  spokes  was  not  an  acceptance 
of  quantity,  but  only  of  quality — for  then  the  quantity  and 
price  of  the  quantity  was  indeterminate ;  still  there  was  a 
manual  caption  of  the  spokes  by  the  buyers,  at  the  jjlace  of 
delivery.  Such  delivery  and  reception  was  not  enough  to 
transfer  the  title  and  risk,  without  an  acceptance  of  the  pro- 
perty as  a  determined  quantity ;  for  such  an  acceptance  de- 
pended upon  a  counting  of  the  spokes. 

But  after  the  culling  of  the  spokes  by  the  buyers,  the  seller 
counted  them,  and  charged  them  upon  his  book  to  the  buyers. 
Whether  this  act  of  the  seller  can  be  regarded  as  a  completion 
of  the  purchase,  so  as  to  transfer  the  title  and  risk  to  the  defen- 
dants, may  be  a  question  to  be  governed  hy  the  understanding 
and  intention  of  the  parties.  It  must,  of  course,  be  a  mutual 
understanding  and  intention  ;  otherwise  it  is  no  element  in  the 
contract.  It  is  manifest  that  the  defendants  are  not  to  be  bound 
and  concluded  as  to  quantity,  and  consequently  as  to  price,  un- 
less they  have  expressly  or  impliedly  agreed  to  be  so  bound. 

Upon  this  subject  the  case  finds  that  nothing  was  said  about 
counting  the  spokes.  The  plaintiff  understood  that  he  was  to 
count  each  lot  selected  by  the  defendants,  and  the  defendants 
understood  that  they  were  to  count  each  lot  selected  by  them, 
before  they  took  them  from  the  mill ;  but  it  does  not  appear 
that  both  parties  understood  the  defendants  were  to  count  the 
spokes.  Still,  if  the  defendants  understood  they  were  to  count 
the  spokes,  it  is  manifest  they  understood  that  they  were  not  to 
be  bound  by  the  plaintiff's  count. 

Could  the  plaintiif  have  understood  the  reverse  of  this?  If 
so,  would  he  not  have  rendered  a  bill  of  the  quantity  ?  The 
year  preceding,  the  defendants  had  purchased  of  the  plaintiff 
about  27,000  spokes,  which  were  selected  by  the  defendants 
and  counted  by  both  parties  before  they  were  removed  from 
the  mill.  This  fact  would  tend,  in  some  degree,  to  show  that 
the  plaintiff,  as  well  as   the  defendants,  understood  that  the 


316  ILLUSTRATIVE   CASES 

latter  were  not   bound  to  accept  the  count  of  the  former  as 
true. 

The  evidence  of  both  defendants  was  admissible,  to  show 
their  independant  understanding  in  this  particular — Graves  v. 
Graves,  45  K  H.  323 ;  Hale  v.  Taylor,  Id.  406— provided  such 
understanding  does  not  come  in  conflict  with  legal  principles 
or  an  express  provision  of  law  of  sni)eri()r  and  controlling 
effect :  Blake  v.  White,  13  N.  H.  272  ;  Hale  v.  Taylor,  before 
cited  ;  Delano  v.  Goodwin,  48  N.  II.  206  ;  Cook  v.  Bennett,  61 
K  II.  85. 

This  is  a  question  of  the  construction  of  the  agreement  be- 
tween the  parties ;  and  it  is  clear  that  the  parties  have  not 
expressed,  by  the  terms  of  the  contract  nor  by  their  acts,  their 
intention  in  a  manner  that  leaves  no  room  for  doubt.  The  in- 
tention, therefore,  must  be  collected  from  the  whole  agreement 
and  the  conduct  of  the  parties,  and  it  must  be  governed  by  the 
settled  legal  rules  of  construction,  if  any  such  rules  are  found 
to  be  applicable. 

Mr.  Blackburn  (Sales  *151-3)  has  discovered  two  rules,  which 
are  in  terms  nearly  equivalent  to  those  in  which  they  are  laid 
down  by  Pothier  as  the  rule  of  the  civil  law. 

The  first  is,  "  where,  by  the  agreement,  the  vendor  is  to  do 
anything  to  the  goods  for  the  purpose  of  putting  them  into 
that  state  in  which  the  purchaser  is  to  be  bound  to  accept 
them,  or, as  it  is  sometimes  worded,  into  a  deliverable  state,  the 
performance  of  those  things  shall  (in  the  absence  of  circum- 
stances indicating  a  contrary  intention)  be  taken  to  be  a  condi- 
tion precedent  to  the  vesting  of  the  property." 

The  second  is,  that  "  where  anything  remains  to  be  done  to 
the  goods  for  the  purpose  of  ascertaining  the  price,  as  by 
weighing,  measuring,  or  testing  the  goods — where  the  price  is. 
to  depend  on  the  quantity  or  the  quality  of  the  goods — the 
performance  of  those  things,  also,  shall  be  a  condition  prece- 
dent to  the  transfer  of  the  property,  although  the  individual 
goods  be  ascertained,  and  they  are  in  a  state  in  which  they 
ought  to  be  accepted. 

"  Whilst  the  price  remains  unascertained,  the  sale  is  clearly 
not  for  a  certain  sum  of  money,  and  therefore  does  not  come 
within  the  civilian's  definition  of  a  perfect  sale,  transferring 


IN    PERSONALTY — SALES.  317 

the  risk  and  gain  of  the  thing  sold:"      Blackburn  on  Sales, 
*154. 

To  these  Mr.  Benjamin  adds  a  third  rule:  "Where  the 
buyer  is,  by  the  contract,  bound  to  do  anything  as  a  condition, 
either  precedent  or  concurrent,  on  wljich  the  passing  of  the 
property  depends,  the  jiropcrty  will  not  pass  until  the  condi- 
tion be  fulfilled,  even  though  the  goods  may  have  been  actually 
delivered  into  the  possession  of  the  buyer:"  Benjamin  on  Sales, 
222. 

The  substance  of  these  three  rules  seems  to  be  tersely  ex- 
pressed by  Mr.  Justice  Story,  thus:  "To  constitute  delivery  so 
that  the  property  will  pass,  nothing  must  remain  to  be  done 
concerning  it  by  cither -party :"  Barrett  r.  Godclard,  3  Mason, 
111.  '  Or  thus,  it  is  said:  "The  principle  that  runs  through  all 
the  cases  is,  that  when  something  remains  to  be  done,  as  be- 
tween buyer  and  seller,  or  for  the  purpose  of  asccrtaning  quan- 
tity or  price,  there  is  no  delivery:"  Rapelye  v.  Mackie,  G  Cow. 
253  ;  Fuller  v.  Bean,  34  K  II.  300  ;  Warren  v.  Buckminster, 
24  Id.  342;  2  Kent's  Com.  49G  ;  Russell  v.  Carrington,  42  X. 
y.  118  ;  Davis  v.  Hill,  3  X.  II.  382 ;  Barnard  r.  Boor,  21  Tick. 
378  ;  Hanson  v.  Meyer,  6  East,  614. 

Such  fact  will  generally  be  conclusive  that  there  was  no 
acceptance  so  as  to  bind  the  parties:  Brown  on  Frauds,  sec. 
317. 

Where  the  defendant  orally  purchased  of  the  plaintiff  a 
quantity  of  tares  by  sample,  and  loft  them  on  the  plaintiff's 
premises,  saying  that  he  had  no  immediate  use  for  them,  and 
requested  that  they  jiiight  remain  there  till  he  wanted  to  sow 
them,  which  was  agreed  to — and  afterward  the  tares  were 
measured  out  by  the  agent  of  the  plaintiti",  and  set  apart  in  his 
granary,  and  ordered  to  be  delivered  to  the  defendant  when  he 
called,  and  the  defendant  afterward  refused  to  take  them,  for 
which  the  action  was  brought — the  Court  of  Queen's  Bench 
nonsuited  the  plaintiff,  holding  that  the  defendant  had  not  ac- 
cepted the  tares  within  the  meaning  of  the  statute.  The  deci- 
sion seems  to  have  gone  upon  the  principle  that  the  buyer 
would  have  the  right,  when  the  tares  were  tendered  him,  to 
reject  them,  as  deficient  in  quantity  or  as  not  agreeing  with  the 


318  ILLUSTRATIVE    CASES 

sample,  a  right  which  he  could  not  he  presumed  to  have 
waived :     Brown  on  Frauds,  sec.  324. 

If  a  sale  is  not  complete,  if  anything  remains  to  he  done  con- 
cerning the  property  by  either  party,  a  present  right  of  pro- 
perty does  not  vest  in  the  buyer.  If  any  condition  precedent, 
such  as  the  ascertainment  of  the  quantity,  and  thereby  of  the 
gross  price,  is  not  performed  or  waived,  the  sale  is  not  com- 
plete :  such  is  the  rule  of  the  common  law. 

This  rule  may  be  abrogated  by  express  agreement  of  the 
parties,  but  the  intention  to  change  it  so  that  the  title  shall 
pass  at  once  must  be  unequivocal  and  distinct;  otherwise  the 
construction  required  by  the  principles  of  law  must  over- 
rule the  possible  intention:     Russel  v.  Carrington,  42  K  Y. 

118. 

Measures  to  ascertain  quantity  or  price  may  be  agreed  on, 
but  tacitly  waived,  or  expressly  postponed  or  dispensed  with : 
Macomber  v.  Parker,  13  Pick.  183. 

But  the  rule  is  laid  down  in  Stone  v.  Peacock,  35  Me.  388, 
thus :  "  Where  some  act  remains  to  be  done  in  relation  to  the 
property  which  is  the  subject  of  sale,  and  there  is  no  evidence 
to  show  any  intention  of  the  parties  to  make  an  absolute  and 
complete  sale,  the  performance  of  such  act  is  a  prerequisite  to 
a  consummation  of  the  contract,  and  until  it  is  performed  the 
property  does  not  pass  to  the  vendee :  Ockington  v.  Richey, 
41  X.  II.  275. 

In  Puller  v.  Bean,  Mr.  Justice  Bell  said  :  "  There  has  been 
an  inclination,  in  some  cases,  to  regard  a  delivery  as  absolute 
when  no  condition  is  insisted  on,  and  to  consider  such  a  deliv- 
ery as  a  waiver  of  the  condition.  But  this,  we  think,  must 
depend  on  the  intent  of  the  parties,  to  be  ascertained  from  all 
their  language  and  conduct,  and  not  from  the  single  fact  of  de- 
livery." "  A  mere  assumption  of  ownership  or  control  by  the 
purchaser  will  not  be  sufficient  evidence  of  a  delivery,  without 
proof  of  consent  or  acquiescence."  And  see  Kelsea  v.  Haines, 
41  K  H.  246. 

In  the  present  case,  the  spokes  were  to  be  taken  by  the  de- 
fendants from  the  mill,  and  they  w^ere  deposited  in  the  place 
from  which  the  defendants  might  remove  them  on  the  comple- 
tion of  the  contract.     But  this  fact  alone  would  not  constitute 


IN    PLKSONALTY— SALES.  319 

a  delivery  in  law.  Tlie  (lefeiidants  lia<l  no  right  to  remove 
them  before  the  (luantity  and  the  i)riee  ivgnlated  by  the  (luan- 
tity  was  ascertained. 

An  important  act,  the  act  of  counting  the  si)okes,  remained 
to  be  done,  in  which  both  parties  had  the  right  to  p:irticii)ate, 
unless  that  right  was  waived  by  the  defentlants:  Stone  v.  Pea- 
cock, before  cited. 

Is  there  any  evidence  competent  to  be  submitted  to  a  jury, 
tending  to  show  any  intention  of  the  parties  to  make  an  abso- 
lute and  complete  sale,  delivery,  and  acceptance,  without  a 
compliance  of  the  prerequisite  condition  of  ascertaining  the 
number  of  the  spokes? 

Is  there  any  evidence  of  any  waiver  by  the  defendants  of 
their' right  to  participate  in  the  important  act  of  counting  the 
spokes  ? 

It  appears  that  "  the  defendants  understood  they  were  to 
count  each  lot  selected  by  them,  before  they  took  them  from 
the  mill."  Is  there  any  evidence  that  the  jilaintiff  had  not  the 
same  understanding? 

It  appears  that  the  result  of  the  seller's  enumeration  was 
never  communicated  to  the  buyers  till  long  after  this  suit  was 
brought.  If  it  had  been  understood  by  the  parties  that  the 
buyers  were  not  to  participate  in  the  counting,  it  would  nat- 
urally be  required  that,  before  removal  to  the  defendants'  mill, 
a  statement  of  that  count  should  be  rendered  in  order  that  the 
buyers  might  verity  it.  The  plaintiff  could  not  expect  the 
defendants  to  pay  for  the  spokes  until  they  knew  how  many 
they  were  to  pay  for.  Sui)pose  the  plaintiff  had  charged  the 
defendants  with  10,000  spokes,  and  the  defendants,  at  the  time 
of  loading  them  for  removal,  had  discovered  that  the  actual 
number  was  but  9000,  would  they  not  have  the  right  to  reject 
the  plaintiff's  count, and  revoke  and  repudiate  the  whole  trade? 
If  so,  there  was  no  prior  irrevocable  acceptance,  to  satisfy  the 
terms  of  the  statute.  It  can  make  no  difference,  in  this  respect, 
that  the  defendants  might  have  a  remedy  against  the  plaintiff 
to  compel  him  to  make  good  a  deficiency,  ascertained  after 
final  acceptance.     That  is  an  independent  consideration. 

The  remark  of  Lord  Ellenborougii,  in  Hanson  v.  Meyer, 
that  "  it  certainly  never  was  in  the  coutcm[ilation  of  the  seller 


320  ILLUSTRATIVE    CASES 

to  waive  the  act  of  weigliing  any  part  of  the  commodity  con- 
tracted for,"  is  equally  applicable  to  the  present  case. 

Suppose  the  defendants  had  removed  the  spokes  at  the  time 
they  selected  them  from  the  common  mass,  we  ai)i>reheud  the 
plaintiff  would  not  have  considered  himself  bound  to  accept  as 
true  the  ex  farie  count  of  the  defendants,  made  in  his  absence, 
without  notice  to  him  and  an  opportunity  to  verify  the  count 
before  the  removal  of  the  property. 

The  fact  is,  the  counting  of  the  spokes  was  a  material  act,  in 
which  both  parties  were  equally  interested ;  and  an  ex  -parte 
adjudication,  so  to  speak,  of  a  matter  so  material  as  quantity 
and  price,  must  almost  inevitably  have  led  to  the  very  results 
which  the  Statute  of  Frauds  was  intended  to  prevent. 

Suppose  a  creditor  of  the  defendants  had  attached  these 
spokes  while  lying  in  the  plaintiff's  mill-yard,  before  they 
were  counted  by  the  defendants,  it  would  not  seem  to  be  very 
strange  if  the  plaintiff  should  insist  that  the  sale  was  not  per- 
fected ;  and,  again,  the  mischief  which  the  statute  tends  to 
avoid  would  have  been  precipitated.  These  illustrations  show 
the  necessity  of  a  rule  which  shall  require  the  provisions  of  the 
statute  to  be  ap[>lied,  except  in  a  strong  and  unequivocal  case 
of  manifest  waiver  of  their  requirements.  The  postponement 
of  the  day  of  payment,  originally  provided  for,  furnishes  no 
indication  of  the  renunciation  of  all  the  other  prerequisites  of 
a  valid  transfer  of  title. 

It  would  be  quite  natural  that  the  defendants  should  count 
the  spokes  at  the  time  of  loading  them,  as  was  in  fact  done  the 
previous  year.  There  would  thus  be  an  opportunity  for  the 
defendants  to  verify  or  to  correct  the  plaintiff's  enumeration 
before  the  removal  of  the  projjcrty  to  the  defendants'  factory, 
where  the  spokes  would  be  withcjut  the  plaintiff's  control  for 
any  purpose. 

The  act  of  charging  the  spokes  upon  the  plaintiff's  book  has 
no  significance.  In  the  well-known  custom  of  merchants,  such 
an  act  usually  precedes  the  removal  of  the  property. 

Upon  the  whole,  we  fail  to  discover  any  evidence  from  which 
a  jury  would  be  at  liberty  to  find  a  waiver  of  the  defendants' 
right  to  insist  upon  a  participation  in  a  matter  so  material  as 
the  determination  of  the  quantity  of  spokes ;  and  we  are  of  the 


IN    PERSONALTY — SALES.  321 

opinion  that,  under  tlie  ap})lication  of  the  recognized  principles 
of  law,  it  is  incumbent  upon  us  to  hold  that  the  sale  was  not 
perfected,  and  that  the  title  to  the  property  remained  in  the 
plaintiff  at  the  tinje  of  its  destruction. 

Under  the  provisions  of  the  case,  there  must  be  judgment  for 
the  defendants. 


Some   act   to    be   performed   by    a    third    party. 

NoFsiNGER  V.  Ring. 

Supreme  Court  of  Missouri,  1879. 

71  Mo.  149. 

IIouGH,  J.  This  was  a  suit  to  recover  the  difference  between 
the  contract  price  and  market  price  at  the  time  and  place  of 
delivery  of  sundry  boxes  of  meat  packed  by  the  plaintiffs  for 
the  defendant,  and  delivered  to  him  under  a  certain  contract 
of  sale,  wliich  meat  the  defendant  failed  and  refused  to  accept. 
The  defendant  admitted  the  contract  of  sale  and  his  refusal  to 
accept  the  meat  delivered,  and  alleged,  as  a  reason  for  his  re- 
fusal, that  the  meat  tendered  did  not  conform  to  the  require- 
ments of  the  contract.  The  contract,  whieli  was  entered  into 
on  the  22d  day  of  August,  1872,  called  for  500  boxes  long 
boneless  (long  clear)  middles,  to  average  not  less  than  iifty-two 
pounds  each  middle,  and  500  boxes  short  boneless  (short  clear) 
middles,  to  average  not  less  than  forty-two  pounds  each  middle, 
both  lots  at  six  and  three-quarter  cents  per  net  pound  of  meat, 
delivery  to  be  made  at  Kansas  City,  Mo.,  on  board  cars,  at  the 
option  of  the  sellers,  during  the  month  of  December,  1872,  and 
to  be  paid  for  in  cash  on  delivery ;  the  above  meat  to  be  cured, 
cut,  trimmed  and  packed  according  to  the  requirements  of  the 
New  York  standard  for  long  and  short  boneless  (clear)  middles. 

On  the  20th  day  of  December,  1872,  the  plaintiffs  notified 
the  defendant  that  they  were  ready  to  begin  delivering  tlie 
meat  under  their  contract.  Thereupon  it  was  arranged  between 
the  parties  that  the  meat  should  be  inspected  before  it  was  de- 
livered on  board  the  cars,  and  one  James  MrCullough,  a  jiro- 
fessional  inspector  of  meat,  was  enq)loyed  by  the  defendant  to 


322  ILLUSTRATIVE    CASES 

see  that  the  meat  offered  by  the  plaintiiF  under  his  contract 
was  properly  cut,  cured,  trimmed,  boxed  and  weighed.  Tlie 
plaintiffs  were  notified  of  his  selection  as  inspector,  and  were 
directed  to  ship  the  middles  to  John  II.  Pool,  New  York  City, 
whenever  they  received  McCullough's  certificate  that  they  were 
according  to  contract.  McCullough  inspected  the  meat,  gave 
the  required  certificate  to  the  plaintiffs,  and  the  meat  was  put 
upon  the  cars.  Upon  receiving  from  McCullough  a  description 
of  the  meat  inspected  by  him  and  shipped  by  the  plaintifis,  the 
defendant.  Ring,  wrote  the  plaintiffs,  declining  to  accept  the 
same,  for  the  reason  that  it  did  not  come  up  to  the  requirements 
of  the  contract.  The  plaintiffs  retained  the  meat  and  sold  it, 
and  brought  this  action  to  recover  the  difference  between  the 
contract  price  and  the  market  price  at  the  time  and  place  of 
delivery.  The  plaintifis  had  judgment  in  the  Circuit  Court, 
which  was  reversed  by  the  Court  of  Appeals. 

The  facts  stated  appeared  in  evidence  at  the  trial,  and  the 
inspector  also  testified  that  the  meat  was  according  to  contract. 
The  defendant  ofiered  to  prove  that  the  meat  was  not  according 
to  contract,  but  this  testimony  w^as  rejected  by  the  Court.  The 
cause  was  tried  without  the  aid  of  a  jury.  At  the  instance  of 
the  plaintifis,  the  Court  gave  the  following  declaration  of  law : 
If  the  Court,  sitting  as  a  jury,  believe  that  the  meat  described 
in  the  contract  ofiered  in  evidence  and  admitted  in  the  plead- 
ings was  tendered  to  defendant  by  plaintiffs,  and  delivered  on 
board  the  cars  at  Kansas  City,  within  the  time  required  by  the 
contract,  and  that  said  meat,  prior  to  said  tender  on  said  cars, 
had  been  inspected  by  the  agent  of  defendant,  and  accepted  by 
him,  to  be  of  the  kind,  quality  and  quantity  called  for  in  said 
contract ;  and  when  said  meat  was  so  tendered  by  plaintiffs, 
defendant  failed  and  refused  to  receive  and  pay  for  the  same, 
then  the  finding  should  be  for  the  plaintiffs. 

ITo  question  is  made  as  to  the  measure  of  damages,  and  we 
therefore  omit  the  instruction  on  that  subject.  The  substance 
of  the  agreement  between  the  parties  was  that  the  defendant 
would  accept  such  meat,  when  delivered,  as  had  been  inspected 
by  McCullough,  and  pronounced  by  him  to  conform  to  the  re- 
quirements of  the  contract.  There  is  no  allegation,  nor  is  there 
any  evidence  of  collusion  between  the  inspector  and  the  plain- 


IN    PEHSOXALTY — SALES.  323 

tiffs ;  and,  in  the  absence  of  an}'  such  collusion,  the  purchaser 
was  as  much  bound  to  receive  the  meat  as  if  he  had  inspected 
it  in  person.  And  there  can  be  no  question  that,  if  Ring  had 
himself  inspected  the  meat  and  pronounced  it  according  to  con- 
tract, before  it  was  packed  and  delivered,  in  the  absence  of  any 
fraud  or  imposition  on  tlie  part  of  the  plaintifls,  he  conld  not 
afterwards  have  refused  to  accept  it  on  the  ground  that  it  did 
not  come  up  to  the  contract.  Xo  fraud  or  unfairness  on  the 
part  of  the  plaintifls  was  attempted  to  be  shown.  V\'o  think 
the  testimony  offered  Avas  properly  rejected,  and  that  the  decla- 
ration of  law  given  by  the  Court  was  correct.  The  judgment  of 
the  Court  of  Appeals  must,  therefore,  be  reversed,  and  that  of 
the  Circuit  Court  affirmed. 

2  Sch.  on  Per.  Prop.,  §  286  ;  Hutton  v.  Moore,  26  Ark.  382  ; 

Fuller  V.  Bean,  34  X.  H.  290  ;  lirogden    v.    Marriott,    2    Bing. 

Newlan  V.  Dunham,  GO  111.  233  ;  (X.  C.)  473,  29  Eng.  Com.  Law. 
Dustau  V.  McAudre\v,44X.  Y.72  ; 


Sale    "on  "Trial,"    or    "Approval." 

Hunt  v.  "Wymax. 

Supreme  Judicial  Court  of  Massachusetts,  1868. 
100  Mass.  198. 

"Wells,  J.  Upon  the  facts  stated  in  this  case,  there  was  a 
bailment  and  not  a  sale  of  the  horse.  The  only  contract,  aside 
from  the  obligations  implied  by  law,  must  be  derived  from  the 
statement  of  the  defendant  that,  if  the  plaintiff  "  would  let 
liim  take  the  horse  and  try  it,  if  he  did  not  like  it  he  would 
return  it  in  as  good  condition  as  he  got  it."  This  contract,  it 
is  true,  is  silent  as  to  what  was  to  take  place  if  he  should  like 
it,  or  if  he  should  not  return  it.  It  may  perha})s  be  faii-ly  in- 
ferred that  the  intent  was  that  if  he  did  like  the  horse  he  was 
to  become  the  purchaser  at  the  price  named.  But,  even  if  tliat 
were  expressed,  the  sale  would  not  take  effect  until  the  de- 
fendant should  determine  the  question  of  his  liking.  An 
option  to  purchase  if  he  liked  is  essentially  different  from  an 
option  to  return  a  purchase  if  he  sluniid  not  like.     In  one  case 


324  ILLUSTRATIVE   CASES 

the  title  will  not  pass  until  the  option  is  determined  ;  in  the 
other  the  property  passes  at  once,  subject  to  the  right  to  re- 
scind and  return. 

A  mere  failure  to  return  the  horse  within  the  time  agreed 
may  be  a  breach  of  contract,  upon  which  the  plaintiff  is  en- 
titled to  an  appropriate  remedy  ;  but  has  no  such  legal  eflfect 
as  to  convert  the  bailment  into  a  sale.  It  might  be  evidence 
of  a  determination,  by  the  defendant,  of  his  option  to  pur- 
chase. But  it  would  be  only  evidence.  In  this  case,  the 
accident  to  the  horse,  before  an  opportunity  was  had  for  trial 
in  order  to  determine  the  option,  deprives  it  of  all  force,  even  as 
evidence. 

This  action,  being  founded  solely  upon  an  alleged  sale  of  the 
horse  for  an  agreed  price,  cannot  be  maintained  upon  the  evi- 
dence reported. 

Exceptions  overruled. 

Mowbray  v.  Cad}',  40  Iowa,  604 ;        Hartford  Sorgham  Co.  v.  Bush, 
Aiken  v.  Hj  de,  99  Mass.  183.  43  Vt.  528. 

Witherby  et  al.   v.    Sleeper,  101 
Mass.  138. 


Sale    of    Goods   "  to    arrive." 

Rogers  v.  Woodruff. 

Supreme  Court  of  Ohio,  1873. 

23  Ohio  St.  632. 

Stone,  J.  The  counter-claim  of  the  defendant  below  is 
based  upon  an  executory  contract  made  October  13,  1862,  by 
which,  as  defendant  alleges,  the  plaintifls  sold  and  contracted 
to  deliver  to  him  by  the  15th  of  November,  then  next  ensuing, 
3000  sacks  of  Liverpool  salt.  This  allegation  of  the  counter- 
claim is  denied  by  the  reply,  and  is  not,  in  our  judgment,  sup- 
ported by  the  contract  given  in  evidence. 

Eft'ect  is,  of  course,  to  be  given  to  the  words  of  the  contract, 
"  to  arrive  by  the  15th  of  November,"  but  the  question  is, 
What  effect?     They  are,  as  we  think,  words  of  condition  and 


IN    PERSONALTY — SALES.  325 

description  only,  and  cannot  be  construed  as  a  warranty  that 
the  salt  shall  arrive.  « 

They  serve  to  distinguish  the  salt  which  was  the  subject  of 
the  contract  from  the  mass  of  salt  of  the  same  variety  found  in 
the  market.  The  salt  jilaintiffs  contracted  to  sell  and  defen- 
dants to  buy,  was  not  salt  which  plaintiffs  may  then  have  had 
on  hand,  or  salt  which  had  previously  arrived.  It  was  salt 
which  was  to  arrive  between  the  date  of  the  contract  and  the 
loth  of  November  following.  Whether  it  would  arrive  or  not 
depended  upon  contingencies,  not  absolutely  within  the  con- 
trol of  either  party.  If  it  arrived  within  the  time  limited, 
plaintitl's  were  impliedly  bound  to  deliver  it  upon  the  contract. 
If  it  failed  to  arrive  within  that  time  no  such  obligation  arose. 
There  was,  in  that  case,  no  salt  which,  under  the  terms  of  the 
contract,  the  plaintifts  were  bound  to  deliver  or  the  defendant 
to  accept. 

Cases  have  frequently  arisen  involving  the  construction  of 
contracts,  in  their  essential  features,  not  to  be  distinguished 
from  the  contract  here  in  question.  It  has  uniformly  been 
held  that  contracts  of  this  description — for  the  sale  of  goods  to 
arrive — are  conditional,  the  words  "  to  arrive,"  or  other  equiva- 
lent words,  not  importing  a  warranty  that  the  goods  will  arrive, 
and  the  obligation  to  perform  the  contract  by  an  actual  transfer 
of  the  property  being,  therefore,  in  the  absence  of  other  words 
showing  a  contrary  intent,  contingent  upon  its  arrival :  Alewyn 
V.  Pryor,  Ryan  &  Moody,  21  Eng.  Com.  Law,  406 ;  Lovatt  v. 
Hamilton,  5  M.  &  W .  639  ;  Johnston  v.  Macdonald,  9  :M.  &  W. 
600  ;  Shields  v.  Pettee,  2  Sand.  262.  See,  also,  Russell  v.  Kicol, 
8  Wend.  112 ;  Benj.  on  Sales,  470 ;  1  Parsons  on  Cont.,  title 
"  Of  Sales  to  Arrive,"  and  cases  cited. 

In  the  present  case,  it  is  not  alleged  that  any  of  the  salt  referred 
to  in  the  contract  arrived,  or  came  within  the  control  of  the 
plaintifls  prior  to  the  15th  of  November,  nor  is  it  claimed  that 
its  arrival  was  delayed  by  their  agency.  The  defendant  counts 
upon  the  contract  as  made,  and  bases  his  claim  to  recover  solely 
upon  the  ground  that  the  plaintiffs,  by  its  terms,  stipulated 
absolutely,  and  at  all  events,  to  deliver  the  salt  within  the  time 
limited. 

2.  The  testimony  offered  by  defendant  to  show  that  by  the 

.)0 


326  ILLUSTRATIVE    CASES 

custom  of  merchants,  the  words  "  to  arrive  by  the  15th  of 
November,"  meant  "  deliverable  on  or  before  the  15th  of  No- 
vember," tended  materially  to  change  the  meaning  and  legal 
effect  of  the  contract,  and  was  clearly  incompetent. 
Judgment  affirmed. 

Neldon  v.  Smith,  36  N.  J.  Law,        Benedict  r.  Field,  10  N.  Y.  595 ; 
148  ;  Johnson  v.  McDonald,  9  M.  &  W. 

Smith  V.  Pettee,  70  N.  Y.  13  ;  600. 


Goods   Sold   and    Shipped    « C.  O.  D." 

State  of  Vermont  v.  O'Neil. 

Supreme  Court  of  Vermont,  1886. 

58  Yt.  140. 

Eoyce,  Ch.  J.  The  first  and  most  important  question  pre- 
sented by  these  cases  is,  whether  or  not  the  intoxicating 
liquors  in  question  were  (in  the  first  two  cases)  in  contem- 
plation of  law  sold  or  furnished  by  the  respondent  in  the 
county  of  Rutland  and  State  of  Vermont ;  or  (in  the  last 
two  cases)  held  and  kept  for  the  purpose  of  sale,  furnishing, 
or  distribution  contrary  to  the  stalute  within  said  county 
and  State.  The  answer  depends  upon  whether  the  National 
Express  Company,  by  which  some  of  said  liquors  were  de- 
livered to  the  consignees  thereof,  and  in  whose  possession  the 
remainder  were  found  and  seized  before  delivery,  was  in  law 
the  agent  of  the  vendors  or  of  the  vendees.  If  the  purchase 
and  sale  of  the  liquors  was  fully  completed  in  the  State  of 
New  York,  so  that  upon  delivery  of  them  to  the  express  com- 
pany for  transportation  the  title  vested  in  the  consignees,  as  in 
the  case  of  a  completed  and  unconditional  sale,  then  no  offence 
against  the  laws  of  this  State  has  been  committed.  If,  on  the 
other  hand,  the  sale  by  its  terms  could  only  become  complete 
so  as  to  pass  the  title  in  the  liquors  to  the  consignees  upon  the 
doing  of  some  act,  or  the  fulfilling  of  some  condition  precedent 
after  they  had  reached  Rutland,  then  the  rulings  of  the  county 
Court  upon  the  question  of  the  oftence  were  correct. 


IN   PERSONALTY — SALES.  327 

Tlie  liquors  were  ordered  by  residents  of  Vermont  from 
dealers  doing  business  in  tlie  State  of  Xew  York,  -who  selected 
from  their  stock  such  quantities  and  kinds  of  goods  as  they 
thought  ])roper  in  compliance  with  the  terms  of  the  orders, 
put  them  up  in  packages,  directed  them  to  the  consignees,  and 
delivered  them  to  the  express  company  as  a  common  carrier 
of  goods  for  transportation,  accom[)anied  with  a  bill  or  invoice 
for  collection.  Tiie  shijiment  was  in  each  instance,  whicli  it 
is  necessary  here  to  consider,  "  C.  0.  D;"  and  the  cases  show- 
that  the  effect  of  the  transaction  was  a  direction  by  the  shi[iper 
to  the  express  company  not  to  deliver  the  goods  to  the  con- 
signees except  ujioii  paynicnt  of  the  amount  specified  in  the 
C.  O.  D.  bills,  together  with  the  charges  for  the  transportation 
of  the  packages  and  ior  llio  return  of  the  money  paid.  This 
direction  was  understood  by  the  express  company,  which  re- 
ceived the  shipments  coupled  therewith. 

Whether  or  not,  and  wiien,  the  legal  title  in  property  sold 
passes  from  the  vendor  to  the  vendee,  is  always  a  question 
of  the  intention  of  the  parties,  which  is  to  be  gathered  from 
their  acts,  and  all  the  facts  and  circumstances  of  the  case 
taken  together.  In  order  that  the  title  may  pass,  as  was  said 
by  Morton,  J.,  in  Mason  r.  Thompson,  18  Pick.  305:  "The 
owner  must  intend  to  part  with  his  property,  and  the  pur- 
chaser to  become  the  immediate  owner.  Their  two  minds 
must  meet  on  this  point ;  and  if  anything  remains  to  be  done 
before  either  assents,  it  may  be  an  inchoate  contract,  but  it  is 
not  a  perfect  sale."  The  authorities  seem  to  be  uniform  upon 
this  point,  and  the  acts  of  the  parties  are  regarded  as  evidence 
by  which  the  court  or  jury  may  ascertain  and  determine  their 
intent:  Benj.  Sales,  ss.  311,  319,  note  (c).  "When  there  is  a 
condition  precedent  attached  to  the  contract,  the  title  in  the 
property  does  not  pass  to  the  vendee  until  performance  or 
waiver  of  the  condition,  even  though  there  be  an  actual  de- 
livery of  possession :  Benj.  Sales,  s.  320,  note  {d).  Tlie  Ver- 
mont cases  to  the  above  points  are  referred  to  in  Roberts's 
Dio'cst,  610  et  seq.,  and  need  hot  be  specially-  reviewed  here. 

In  the  cases  under  consideration  the  vendors  of  the  liquoi*s 
shipped  them  in  accordance  with  the  terms  of  the  orders  re- 
ceived, and  the  mode  of  shipment  was  as  above  stated.     They 


328  ILLUSTRATIVE   CASES 

delivered  the  packages  of  liquors,  properly  addressed  to  the 
several  persons  ordering  the  same,  to  the  express  company,  to 
be  transported  by  that  company  and   delivered   by  it  to  the 
consignees  upon  fulfillment  by  them  of  a  specified  condition 
precedent,  namely,  payment  of  the  purchase  price  and  trans- 
portation charges,  and  not  otherwise.     Attached  to  the  very 
body  of  the  contract,  and  to  the  act  of  delivery  to  the  carrier, 
was  the  condition  of  payment  before  delivery  of  possession  to 
the  consignee.     With  this  condition  unfulfilled  and  not  waived, 
it  would  be  impossible  to  say  that  a  delivery  to  the  carrier 
was  intended  by  the  consignor  as  a  delivery  to  the  consignee, 
or  as  a  surrender  of  the  legal  title.     The  goods  were  intrusted 
to  the  carrier  to  transport  to  the  place  of  destination  named, 
there  to  present  them  for  acceptance  to  the  consignees,  and  if 
he  accepted  them  and  paid  the  accompanying  invoice  and  the 
transportation  charges,  to  deliver  them  to  him ;  otherwise,  to 
notify  the  consignor  and  hold  them  subject  to  his  order.     It 
is  diflicult  to  see  how  a  seller  could  more  positively  and  un- 
equivocally express  his  intention  not  to  relinquish  his  right  of 
property  or  possession  in  goods  until  payment  of  the  purchase 
price  than  by  this  method  of  shipment.     We  do  not  think  the 
case  is  distinguishable  in  principle  from  that  of  a  vendor  who 
sends  his  clerk  or  agent  to  deliver  the  goods,  or  forwards  them 
to,  or  makes  them  deliverable  upon  the  order  of,  his  agent,  with 
instructions  not  to  deliver  them  except  on  payment  of  the  price, 
or  performance  of  some  other  specified  condition  precedent  by 
the  vendee.     Tbe  vendors  made   the  express  company   their 
agent  in  the  matter  of  the  delivery  of  the  goods,  with  instruc- 
tions not  to  part  with  the  possession  of  them  except  upon  prior 
or  contemporaneous  receipt  of  the  price.     The  contract  of  sale 
therefore  remained  inchoate  or  executory  while  the  goods  were 
in  transit,  or  in  the  hands  of  the  express  company,  and  could 
only  become  executed  and  complete  by  their  delivery  to  the 
consignee.     There  was  a  completed  executory  contract  of  sale 
in  New  York;  but  the  completed  sale  was,  or  was  to  be,  in 
this  State. 

The  authorities  upon  the  above  points  and  principles  are  so 
numerous,  and  are  so  fully  collated  in  the  brief  of  the  learned 
counsel  for  the  State,  and  in  the  text  and  notes  on  2  Benj.  Sales 


IN    PEKSONALTY— SALES.  329 

(4th  Am.  ed.),  that  we  refrain  from  specific  reference  in  support 
of  the  conclusions  at  which  we  have  arrived.     These  arc  fully 
supported  by  the  decision  of  the  U.  S.  District  Court  of  Illinois 
iu  People  v.  Shriver,  31  Alh.  L.  J.  163,  a  case  involving  j.re- 
cisely  the  same  question.     Treat,  J.,  says  in  the  ojtinion:    ''  In 
the  case  of  liquor  shipped  hy   the  defendant  to  FairiiL-ld   I)y 
express,  C.  0.  D.,  the  ru^uor  is  received  by  the  express  company 
at  Shawneetown  as  the  agent  of  the  seller,  and  not  as  tlie  agent 
of  the  buyer,  and  on  its  reaching  Fairfield  it  is  there  held  by 
the  company,  as  the  agent  of  the  peller,  until  the  consignee 
comes  and  pays  the  money,  and  then  the  company,  as  the  agent 
of  the  seller,  delivers  the  liquor  to  the  purchaser.     In  such  case 
the  possession  of  the  express  company  is  the  possession  of  the 
seller,  and  generally  the  right  of  property  remains  in  the  seller 
until  the  payment  of  the  price.     An  order  from  a  person  in 
Fairfield  to  the  defendant  at  Shawneetown  for  two  gallons  of 
liquor,  to  be  shipped  to  Fairfield  C.  0.  D.,  is  a  mere  offer  by 
the  person  sending  such  order  to  purchase  two  gallons  of  liquor 
from  the  defendant,  and  pay  him  for  it  when  he  delivei-s  it  to 
him  at  Fairfield,  and  a  shipment  by  the  defendant  according  to 
such  order  is  practically  the  same  as  if  the  defendant  had  him- 
self taken  two  gallons  of  liquor  from  his  store  in  Shawneetown, 
carried  it  in  person  to  Fairfield,  and  there  delivered  it  to  the 
purchaser,  and  received  the  price  of  it.     It  would  be  ditterent 
if  the  order  from  Fairfield  to  the  defendant  was  a  simple  order 
to  ship  two  gallons  of  liquor  by  express  to  the  person  ordering, 
whether  such  order  was  acconq:)anied   by  the  money  or  not. 
The  moment  the  liquor  under  such  an  order  was  delivered  to  the 
express  company  at  Shawneetown  it  would  become  the  property 
of  the  person  ordering,  and  the  possession  of  the  express  com- 
pany at  Shawneetown  would  be  the  possession  of  the  purchaser — 
the  sale  would  be  a  sale  at  Shawneetown — and  if  it  were  lost  or 
destroyed  in  transit  the  loss  would  fall  uj^on  the  purchaser. 
But  in  the  case  at  bar  the  shipping  of  the  liquor  to  Fairfield 
C.  0.  D.,  the  defendant  made  no  sale  at  Shawneetown  ;  the  right 
of  property  remained  in  himself,  and  the  right  of  possession,  as 
well  as   the  actual  possession,  remained  in  him   through   his 
ao-ent.     Had  it  been  lost  or  destroyed  in  transit  the  loss  would 
have  fallen  on  himself.     He  simply  acted  upon  the  request  ot 


330  ILLUSTRATIVE   CASES 

the  purchaser,  and  sent  the  liquor  to  Fairfield  by  his  own  agent, 
and  there  effected  a  sale  by  receiving  the  money  and  delivering 
the  liquor." 

II.  It  is  insisted  on  the  part  of  the  claimant  in  the  case  of 
the  State  v.  68  Jugs,  etc.,  that  sec.  2  of  No,  43  of  the  Acts 
of  1882,  under  which  the  liquors  in  that  case  were  seized,  is 
unconstitutional.  Conceding  the  points  contended  for  by  the 
learned  counsel  for  the  claimant,  that  there  is  a  well- recognized 
right  of  property  in  intoxicating  liquors,  that  they  are  not 
malum  in  se,  and  that  their  use  is  not  by  law  prohibited  to 
citizens  of  this  State,  these  propositions  are  nevertheless  clearly 
subject  to  the  qualification,  that  ivJieJi  kej)t  and  intended  for  un- 
lawful use,  such  liquors  fidl  at  once  under  the  ban  of  the  law, 
and  become  subject  to  seizure  and  confiscation  by  such  methods 
as  are  provided  by  law  in  conformity  with  the  Constitution. 
That  intoxicating  liquors,  when  once  branded  with  this  unlaw- 
ful intent  on  the  part  of  the  owner  or  possessor,  become  subject 
to  confiscation  by  the  government,  and  that  the  methods  and 
means  of  their  seizure  and  condemnation  are  within  the  police 
powers  delegated  to  the  Legislature  by  Art.  5,  Part  1,  of  the 
Constitution,  is  too  well  settled  in  this  State  and  elsewhere  to 
require  extended  discussion:  Spalding  v.  Preston,  21  Vt.  9; 
State  V.  Conlin,  27  Id.  318  ;  Id.  325,  327  ;  State  v.  Comstock, 
Id.  553;  Gill  v.  Parker,  31  Id.  610;  Pott.  Dwarris,  c.  14; 
Cooley  Con.  Lim.  (4th  ed.),  714,  727. 

This  section  gives  the  ofiicer  the  power  to  seize  without  Avar- 
rant  liquor  found  "  under  circumstances  warranting  the  belief 
that  it  is  intended  for  sale  or  distribution"  contrary  to  the 
provisions  of  chap.  169  R.  L.  It  does  not  purport  to  confer 
the  power  of  search ;  nor  does  anything  appear  to  show  that 
the  officer  assumed  to  exercise  such  power  in  tliis  case.  It 
simply  provides  for  the  seizure,  without  warrant  previously 
issued,  of  something  which  the  law  has  declared  subject  to 
seizure  and  condemnation,  under  the  police  power  delegated 
by  the  Constitution,  as  an  instrument  intended  by  the  owner 
or  possessor  for  a  use  unlawful  by  express  statute,  and  dangerous 
to  the  peace,  health,  and  good  morals  of  the  community.  That 
the  article  in  itself  may  be  innocuous,  may  be  the  subject  of 
lawful  ownership,  or  may  even  be  susceptible  of  beneficial  use, 


IN    PERSONALTY — SALES.  331 

can  no  more  aiFect  the  question  than  could  the  fact  that  certain 
tools  were  susceptible  of  lawful  and  beneficial  use  in  mechanics, 
save  them  from  becoming  subject  to  seizure  and  confiscation,  if 
intended  by  their  owner  or  possessor  for  use  as  the  instruments 
for  accomplishing  a  contemplated  burglary;  or  the  harndesa 
character  of  the  metal  and  its  owner's  right  of  property  therein 
protect  his  ownership  when  fashioned  and  intended  for  passing 
as  counterfeit  coin.  It  cannot  be  doubted  in  this  State,  since  the 
case  of  Si)alding  v.  Preston,  21  Vt.  9,  and  has  not  been  else- 
where, so  I'ar  as  we  are  aware,  that  articles  or  instrumentalities 
once  impressed  with  the  characteristics  of  adaptation  and  in- 
tended use  for  purposes  prohibited  by  law  and  contrary  to  jiublic 
peace,  health,  or  morals,  are  subject  to  sunmiary  seizure  under 
statutory  or  even  general  police  regulations.  That  the  liquore 
in  question  were  intended  for  such  use  has  been  determined  in 
this  case  as  a  question  of  fact  by  the  tribunal  designated  by 
law,  and  that  adjudication  is  conclusive. 

The  scope  and  application  of  Art.  5,  Tart  1,  of  the  Consti- 
tution have  been  defined  by  this  Court  in  the  cases  above  re- 
ferred to,  and  in  In  re  Powers,  25  Vt.  265,  which  has  ever  since 
been  regarded  as  conclusive  against  such  application  of  that 
section  of  the  bill  of  rights  as  is  here  contended  for  by  the 
claimant.  Sec  Gill  v.  P^arker,  31  Vt.  610;  State  v.  Peterson, 
41  Id.  504;  State  v.  Inlox.  Liq.,  55  Id.  82.  In  Massachusetts 
a  statute  practically  identical  with  the  one  in  question  has 
been  held  not  to  contravene  a  similar  constitutional  provision : 
Jones  V.  Root,  6  Gray,  435  ;  Mason  v.  Lothrop,  7  Id.  354.  The 
decisions  in  Maine  are  to  the  same  efi:ect:  State  v.  McCann, 
59  Me.  383  ;  State  v.  Howley,  65  Id.  100. 

III.  Concerning  the  claim  that  sec.  8  of  the  Federal  Consti- 
tution, conferring  upon  Congress  the  exclusive  right  to  regulate 
commerce  among  the  States,  has  application,  it  is  suflicicnt  to 
say  that  no  regulation  of  or  interference  with  interstate  com- 
merce is  attempted.  If  an  express  company,  or  any  other 
carrier  or  person,  natural  or  corporate,  has  iti  possession  within 
this  State  an  article  in  itself  dangerous  to  the  community,  or 
an  article  intended  for  unlawful  or  criminal  use  within  the 
State,  it  is  a  necessary  incident  of  the  police  powers  of  the 
State   that  such   article  should   be  subject  to  seizure  for  the 


332  ILLUSTRATIVE    CASES 

protection  of  the  commuuitj.  It  would  certainly  be  a  strange 
perversion  of  language  to  claim  that  if  this  express  company 
were  to  hold  in  possession  Avithin  this  State  clothing  infected 
with  the  smallpox  or  yellow  fever,  or  tools  with  which  it  was 
intended  to  commit  a  burglary,  the  State  government  should 
be  powerless  to  protect  its  citizens  by  seizing  and  rendering 
harmless  such  articles,  simply  because  they  might  have  been 
brought  in  the  ordinary  course  of  business  from  another  State. 
If  the  express  company  has  in  possession  within  the  State 
liquor,  with  intent  to  make  urdcncfid  use  or  disposition  of  it,  then 
the  right  to  seize  it  and  prevent  such  unlawful  use  attaches. 
If  it  were  competent  for  persons  or  companies  to  become  supe- 
rior to  State  laws  and  police  regulations,  and  to  override  and 
defy  them  under  the  shield  of  the  Federal  Constitution  simply 
by  means  of  conducting  an  interstate  traffic,  it  would  indeed 
be  a  strange  and  deplorable  condition  of  things.  The  right 
of  the  States  to  regulate  the  traffic  in  intoxicating  liquors  has 
been  settled  by  the  United  States  Supreme  Court  in  the  License 
Cases,  5  How.  577. 

IV.  Proof  of  the  former  conviction  in  the  cases  of  State  v. 
O'lls'eil  was  properly  admitted,  notwithstanding  the  conviction 
appeared  to  have  been  more  than  three  years  before  the  trial. 
No  provision  of  the  statute  requires  that  the  former  conviction 
must  have  been  within  three  years,  and  we  have  no  authority 
to  add  such  a  provision  to  the  law,  as  it  is  plainly  and  unam- 
biguously framed  by  the  Legislature.  The  reason  for  the  limi- 
tation of  prosecutions  for  the  otlences  charged  in  these  cases  to 
a  period  within  three  years  from  the  time  of  commission,  as 
for  all  similar  limitations,  is  that  a  person  should  not  be  called 
upon  to  answer  to  a  legal  accusation  after  such  a  long  time  has 
elapsed  as  would,  in  the  estimation  of  the  law,  make  it  difficult 
or  impossible,  by  reason  of  the  death  or  removal  of  witnesses, 
the  loss  or  destruction  of  evidence,  or  the  various  embarrass- 
ments likely  to  arise  from  a  considerable  lapse  of  time,  for  him 
to  establish  his  innocence.  This  reason  has  no  application  to 
a  case  where  the  only  proof  that  can  be  used  on  the  one  side 
or  the  other  is  matter  of  record.  We  should  therefore  have 
no  justification,  even  if  we  deemed  it  within  the  scope  of  our 


IN    PERSONALTY — SALES.  333 

power  and  duty,  for  making  application  of  a  rule  of  limitation 
by  analogy  in  these  cases. 

V.  The  constitutional  inliibition  of  cruel  and  unusual  punish- 
ments, or  excessive  fines  or  bail,  has  no  application.  The  pun- 
ishment imposed  by  statute  for  the  offence  with  which  the 
respondent,  O'Xeil,  is  charged,  camiot  be  said  to  be  excessive 
or  oppressive.  If  he  has  subjected  himself  to  a  severe  penalty, 
it  is  simply  because  he  has  committed  a  great  mamj&uii\\  oft'ences. 
It  would  scarcely  be  competent  for  a  person  to  assail  the  con- 
stitutionality of  the  statute  prescribing  a  [)unishnjent  for  bur- 
glary, on  the  ground  that  he  had  committed  so  many  burglaries 
that,  if  punishment  for  eacli  were  inflicted  on  him,  he  might 
be  kept  in  prison  for  life.  The  mere  fact  that  cumulative 
punishments  may  be  imposed  for  distinct  offences  in  the  same 
prosecution  is  not  material  upon  this  question.  If  the  penalty 
were  unreasonably  severe  for  a  single  offence,  the  constitutional 
question  might  be  urged  ;  but  here  the  unreasonableness  is  only 
the  number  of  offences  which  the  respondent  has  committed. 

The  inevitable  deduction  from  what  has  been  said  under  the 
first  point  is,  that  the  respondent,  O'Xeil,  by  what  he  did  iu 
respect  of  the  transactions  in  question,  made  the  express  com- 
pany his  agent ;  and  as  what  was  done  by  such  agent  in  the 
execution  of  the  authority  and  instructions  directly  given  by 
him  constituted  offences  against  the  statute,  O'Xeil  must  be 
held  responsible.  That  he  was  innocent  of  any  purpose  or 
intent  to  break  the  law,  and  was  unaware  that  what  he  did 
w^as  contrary  to  law,  cannot  avail  him  in  defence:  State  v. 
Comings,  28  Vt.  508. 

The  result  is  that  in  the  cases  of  the  State  v.  O'lSTeil,  numbers  27 
and  28,  the  respondent  takes  nothing  by  his  exceptions ;  and  in 
the  cases  of  the  State  v.  Intoxicating  Liquor,  i^ational  Express 
Company,  claimant,  numbers  25  and  2G,  the  judgments  are 
aflirmed. 

Commonwealth  v.  Flemming,  130  Pa.  138  (18  Atl.  G23). 


334  ILLUSTRATIVE    CASES 

Goods   sold   by    Sample. 

Marriman  v.  Chapman. 

Supreme  Court  of  Errors,  Connecticut,  1864. 

32  Conn.  146. 

HiNMAN,  C.  J.     This  suit  was  for  the  price  of  some  barrels 
of  apples  claimed  to  have  been  sold  and  delivered.     The  sale 
was  by  sample,  and  the  defendant,  on  their  being  delivered  to 
him,  objected  to  receiving  them  on  the  ground  that  they  did 
not  correspond  with  the  sample,  and  tendered  them  back  to  the 
plaintiff,  and  the  question  before  the  Court  was  whether  they 
did  in  fact  correspond  with  the  sample.     The  plaintiff  claimed 
that  in  consequence  of  the  delivery,  so  that  the  apples  came 
into  the  defendant's  possession,  the  burden  of  proof  was  upon 
the  latter  to  show  that  they  did  not  correspond  with  the  sam- 
ple ;  but  the  Court  decided  that,  as  they  were  not  accepted, 
and  were  tendered  back  to  the  plaintiff  in  due  season  on  dis- 
covering their  inferior  quality,  it  was  for  the  plaintiff  to  prove 
that  the  quality  was  not  inferior  in  order  to  enable  him  to 
recover.     We  have  no  doubt  of  the  correctness  of  this  decis- 
ion.    Where   there  is  an    executory  contract  for  the  sale  of 
goods  warranted  to  be  of  a  particular  quality  or  description, 
they  must  conform  to  the  warranty,  or  the  vendee  is  not  bound 
to  receive  or  accept  them :  Wright  v.  Barnes,  14  Conn.  518. 
And  a  sale  by  sample  is  held  to  imply  a  warranty  that  the 
bulk  of  the  article  corresponds  in  quality  with  the  article  ex- 
hibited:  Bradford  v.  Manly,  13  Mass.  139;  Waring  v.  Mason, 
18  Wend.  425.     If  it  does  not  correspond  with  the  warranty 
when  delivered  the  vendee  is  not  merely  justified  in  not  re- 
ceiving it,  but  he  may  receive  it  for  the  purpose  of  examina- 
tion and  if  found  not  to  be  of  the  quality  or  description  war- 
ranted, or,  what  is  the  same  thing,  not  to  correspond  with  the 
sample,  he  may  return  it  to  the  vendor,  the  examination  and 
return  being  within  a  reasonable  time  :  Lord  Tenterden,  C.  J., 
in  Street  v.  Blay,  2  Barn.  &  Adol.  456,  22  Eng.  Com.  Law. 
The  executory  contract  for  the  sale  and  delivery  of  the  goods 


IN    PLR2ONALTV — SALES.  335 

does  not  become  executed,  so  as  to  lay  the  foundation  for  an 
indebitatus  assuni}>sit,  until  goods  answering  the  descriiition  of 
tiie  contract,  that  is,  in  this  case  corresponding  substantially 
with  the  samiilc.  have  been  delivered,  or  there  has  been  a  com- 
plete acceptance  of  them  by  the  vendee.  The  error  of  the 
plaintitf's  counsel  in  this  case  consists  in  treating  the  delivery 
of  the  goods  at  the  defendant's  place  of  business  as  a  eomi)lete 
delivery,  and  tantamount  to  an  acceptance  of  them  by  the 
defendant.  If  the  defendant  had  received  them  as  in  execution 
of  the  contract,  or  had  kept  them  f<>r  an  unreasonable  time 
before  returning  or  tendering  them  back,  the  plaintift's  claim 
would  be  correct.  But  while  the  contract  remained  executory 
it  would  be  a  strange  perversion  of  justice  to  bind  him  to  accept 
and  pay  for  that  which  he  had  never  purchased,  and  he  clearly 
did  not  purchase  that  which  did  not  answer  in  quality  to  the 
description  of  his  contract. 

The  condition  that  the  property  may  be  returned,  if  it  does 
not  answer  the  descrii>tion  contemplated  and  agreed  upon,  is 
always  implied,  if  there  lias  been  no  acceptance  of  it  by  the 
vendee.  If  the  action  had  been  brought  upon  the  executory 
contract  for  not  accepting  and  paying  for  the  goods,  it  is  ap- 
parent that  in  order  to  prove  his  whole  case  the  plaintiff  must 
have  shown  that  the  goods  corresponded  with  the  sample, 
since  otherwise  it  would  not  a[)pear  that  his  part  of  the  contract 
had  been  performed,  while  on  an  executed  contract  it  is  only 
necessary  for  the  plaintiti'  to  prove  its  execution,  and  it  is  then 
for  the  defendant  to  show  that  the  goods  were  inferior  to  the 
quality  stipulated  for,  in  order  to  reduce  the  i)rice  to  be  paid 
for  them.  Here  the  plaintiff  sues  as  upon  an  executed  contract. 
He  may  do  this  if  be  can  show  that  in  point  of  fact  it  has  been 
so  far  executed  as  to  create  a  debt  against  the  defendant  for 
which  indebitatus  assumpsit  will  lie,  and  he  can  do  this  in  one 
of  two  ways:  lie  may  show  a  delivery  of  the  goods  and  an 
acceptance  of  them  by  the  defendant,  either  expressly,  or  by 
retaining  them  for  an  unreasonable  time  or  an  appropriation  of 
them  to  his  own  use,  or  he  may  show  an  execution  of  the  con- 
tract on  his  part  by  the  delivery  of  goods  corresponding  in 
quality  with  the  stipulations  of  the  contract.  This,  of  course, 
in  a  case  like  the  one  under  consideration,  throws  the  burden 


336  ILLUSTRATIVE    CASES 

of  proving  the  quality  upon  the  [.luiatiff'.  There  is  nothing  in 
the  case  of  Dorr  v.  Fisher,  1  Cush.  171,  in  conflict  with  the  views 
here  expressed,  hut,  on  the  contrary',  we  are  sustained  hy  that 
decision.  In  that  case  the  goods  had  been  accepted  in  fact  and 
appropriated  to  the  defendant's  use,  and  the  breach  of  warranty 
was  only  set  up  for  the  purpose  of  reducing  the  damages,  and 
in  such  a  case  there  is  no  doubt  that  the  burden  of  proof  is 
upon  the  party  who  sets  up  the  breach  of  warranty. 

For  these  reasons  we  are  of  opinion  that  there  is  no  error  in 
the  judgment  complained  of,  and  a  new  trial  is  not  advised. 

Day  V.  Raguet,  14  Minn.  273  ;  Salisbury  v.    Stainer,  19  Wend. 

Williams  v.  Spafford,  8  Pick.  250  ;    159. 


3. 

CONDITIOI^AL  SALE, 

a. 

Rights   of    Parties. 

Day  v.  Bassett. 

Supreme  Judicial  Court  of  Massachusetts,  1869. 

102  Mass.  445. 

Chapman,  C.  J.  It  appears  that  Holt,  being  the  owner  of 
the  shaft  which  is  the  subject  of  controversy,  sold  and  delivered 
it  to  Henry  for  $31.20,  receiving  $10  as  part  payment ;  that  it 
was  agreed  that  it  should  remain  the  pro[)erty  of  Holt  till  it 
was  paid  for;  and  that  Henry  took  it  and  put  it  into  the  mill 
in  his  occupation,  and  connected  it  with  the  machinery,  and  it 
continued  to  be  used  wnth  the  machinery.  It  is  imj)lied  by  the 
statement  of  the  case  that  this  was  w^ith  the  consent  of  Holt. 
But  as  no  time  of  payment  appe.ars  to  have  been  fixed,  it  is 
implied  that  payment  was  to  be  made  on  demand.  Henry 
would  have  the  right  under  these  circumetances  to  retain  and 
use  the  shaft  till  he  made  default.  Until  such  default  Holt 
could  not  reclaim  the  property  ;  and  upon  a  tender  of  the 
balance  due,  Henry's  title  would  become  absolute.     But  before 


IN    PERSONALTY — SALES.  337 

making  the  tender  he  sold  the  niacliiiifry  in  the  mill  to  the 
plaiiititl",  who  entered  and  took  possession  ot"  the  jtrojierty, 
including  the  slial't.  lie  did  not  remove  the  shalt,  but  con- 
tinued to  use  it  as  Henry  had  done.  It  is  contended  that  this 
sale  forfeited  Henry's  right  to  complete  his  title  by  making  pay- 
ment of  the  balance.  But  this  cannot  be  so  consistently  with 
the  principles  applicable  to  such  contracts.  An  in  the  case  of 
Vincent  v.  Cornell,  13  Pick.  294,  it  was  a  conditional  sale  to 
him,  liable  to  be  defeated  by  non-performance  of  the  condition. 
He  had  a  right  to  dispose  of  the  iiro[)erty,  with  his  right 
therein,  such  as  it  was,  to  the  defendant.  He  had  a  possession 
and  a  right  of  possession,  and  a  right  to  use  the  property  where 
it  was  until  default  of  jiaynjent. 

When  Henry  perfected  liis  own  title  by  a  tender  of  the  bal- 
ance due,  the  plaintiff's  title  became  perfected  thereby,  and  tlie 
defendants  afterwards  took  the  shaft  away  without  right. 
These  principles  are  in  accordance  with  the  case  of  Coggill  v. 
Hartford  and  New  Haven  Railroad  Co.,  3  Gray,  548.  In  that 
case  the  bargainees  l)ad  neglected  to  pay  for  the  property  by 
note,  as  they  had  agreed  to  do,  and  the  vendor's  right  to  re- 
possess himself  of  the  property  was  put  upon  the  ground  that 
the  condition  had  not  been  fultilled.  See,  also,  Reed  v.  Upton, 
10  Pick.  522;  Whipple  v.  Gilpatrick,  19  Maine,  427. 

Exceptions  sustained. 

DAKLTNGTON,  P.  P.,  88  ;  Security-Thorpe  Bros.  &  Co.  v. 

A^arious  Conditions.  Fowler,  57  Iowa,  541 ; 

Payment— M.  C.  Ry.  v.  Phillips,        Whitney  v.  Eaton  ct  al,  15  Gray. 
GO  111.  190  ;  225  ; 

Russell  V.  Minor,  22  Wendell,  659. 


Attaching    Creditors. 

Cole  ?•.  Berry. 

Supreme  Court  of  New  Jersey,  1880. 

42  N.  J.  Law,  308. 

Depue,  J.     Cole   sued    Berry,  in    trespass,  for   seizing   and 
selling  a  sewing  nuu-hine.     Berry,  as  one  of  the  constables  of 


338  ILLUSTRATIVE    CASES 

the  county  of  Hunterdon,  seized  and  sold  the  machine  under 
and  by  virtue  of  a  writ  of  attachment  issued  out  of  the  jus- 
tice's Court,  against  one  Gustave  Wetzel.  Cole  was  the  owner 
of  the  machine.  lie  entered  into  a  contract  for  the  sale  of  it 
to  Wetzel,  the  terms  of  which  appear  in  the  following  agree- 
ment in  writing : — 

"  Annandale,  June  26,  1876. 

"Whereas,  the  subscriber  have  this  day  purchased  of  Josiah 
Cole  one  Domestic  sewing  machine,  for  the  sum  of  tifty-five 
dollars,  for  which  I  have  given  fifteen  dollars  in  cash,  and  my 
note  for  forty  dollars,  payable  in  instalments  of  five  dollars  a 
month,  and  I  have  allowed  him  to  take  the  machine  in  his 
possession:  Now,  it  is  agreed  that  the  said  machine  is  to  be 
and  remain  the  property  of  the  said  Cole,  and  be  subject  to  his 
control,  until  the  same  is  actually  paid  for  in  cash. 

"  Gustave  Wetzel." 

Cole  delivered  the  machine  to  Wetzel,  under  this  arrange- 
ment, and  it  was  in  the  possession  of  the  latter  when  it  was 
levied  on  by  the  defendant.  For  the  $15,  which,  by  the  agree- 
ment, was  payable  in  cash,  Wetzel  gave  a  due  bill,  payable  in 
eight  days.  For  the  balance  of  the  contract  price,  Wetzel 
gave  a  note,  payable  according  to  the  terms  of  the  agreement. 
Neither  the  due  bill  nor  the  note  has  been  paid.  On  the 
trial,  the  Court  gave  judgment  for  the  defendant,  on  the 
ground  that  the  written  agreement  was  fraudulent  and  void, 
and  that  the  plaintifi'  had  no  title  to  the  machine  when  it  was 
attached. 

The  agreement  is  inartistically  drawn.  It  leaves  it  in  some 
doubt  whether,  in  legal  import,  the  paper  is  to  be  considered 
as  a  "  mortgage,  or  conveyance  intended  to  operate  as  a  mort- 
gage," within  the  thirty-ninth  section  of  the  Act  concerning 
mortgages  (Rev.,  p.  709),  or  as  containing  the  terms  of  a  con- 
tract of  sale  between  the  parties.  The  Court  below  evidently 
regarded  it  in  the  latter  aspect,  for  there  is  no  mention  in  the 
case  of  the  filing  or  non-filing  of  the  instrument  as  a  chattel 
mortgage.  Taken  in  connection  with  the  other  evidence,  the 
transaction  is  susceptible  of  such  an  interpretation,  and  I  will 
adopt  that  construction  for  present  purposes.  I  do  so  the  more 
readily  as  either   construction   presents   for  examination   the 


IX   PERSONALTY — SALES.  339 

souiuhiess  of  the  reason  on  whicli  the  judgment  of  the  Court 
was  hascch 

Tlio  legal  proposition  which  entered  into  the  judgment 
below  is  either  that  a  contract  for  the  sale  of  a  chattel,  fol- 
lowed by  (leliN-ery  to  the  vendee,  i)asses  title  to  the  vendee, 
although  it  be  one  of  the  terms  of  the  contract  that  the  title 
shall  not  pass  until  the  contract  price  be  paid,  or  that  such  an 
agreement  is,  prr  6;<?,  fraudulent  and  void,  as  against  creditors 
of  the  purchaser. 

ISTeither  of  the  foregoing  propositions  contains  a  correct  ex- 
position of  the  law.  No  rule  of  law  is  better  settled  than 
that,  in  the  sale  of  chatte-ls,  property  will  pass  or  not,  accord- 
ing to  the  inteutidu  of  parties,  as  expressed  in  the  contract 
of  sale.  "It  is  a  general  rule  that  when  a  man  hath  a  thing, 
he  may  condition  with  it  as  he  will :"  Shep.  Touch.  118.  Mr. 
Benjamin  states  the  general  rule  in  this  language:  "Where 
the  buyer  is,  by  the  contract,  bound  to  do  anything  as  a  con- 
dition, either  precedent  or  concurrent,  on  which  the  passing 
of  the  property  depends,  the  property  will  not  pass  until  the 
condition  be  fulfilled,  even  though  the  goods  may  have  been 
actually  delivered  into  the  possession  of  the  buyer:"  Benj.  ou 
Sales,  222. 

Payment  of  the  contract  price  is  one  of  the  most  usual  con- 
ditions on  which  the  transfer  of  title  depends.  It  is  generally 
a  condition  to  be  performed  simultaneously  with  delivery.  If 
such  be  the  contract,  a  waiver  of  the  condition  may  be  pre- 
sumed from  an  unconditional  delivery,  without  exacting  pay- 
ment, and  in  the  absence  of  exi>lanatory  proof,  the  property 
will  vest  in  the  purchaser:  2  Kent,  496  ;  Smith  r.  Lynes,  1 
Seld.  41 ;  Carleton  v.  Sumner,  4  Tick.  516  ;  Smith  v.  Dennie, 
6  Id.  262-266;  Farlow  v.  Ellis,  15  Gray,  229.  But  where 
the  delivery  is  conditional,  as  where  the  parties  have  stipu- 
lated that,  notwithstanding  delivery,  the  title  shall  not  pass 
until  the  contract  price  be  paid,  property  in  the  chattel  will 
not  pass  to  the  vendee  until  payment  be  made.  The  vendor's 
title  is  not  divested  by  a  conditional  delivery,  if  the  terms  of 
sale,  with  respect  to  payment,  be  not  complied  with:  D'AVolf 
V.  Babbett,  4  Mason,  289  ;  Copland  r.  Bosquet,  4  AVash.  C.  (\ 
588  ;   The  Oriole,  1  Sprague,  31 ;  Parsons  on  Contracts,  537. 


340  ILLUSTRATIVE    CASES 

III  Ballard  v.  Burget,  40  K.  Y.  314,  Grover,  J.,  styles  such 
a  contract  an  executory  agreement  that  the  title  shall  pass  on 
the  happening  of  the  stipulated  event— the  payment  of  the 
price.  Mr.  Story  distinguishes  it  from  a  purely  executory 
contract  in  this  [)articular:  that  an  executory  contract  is  abso- 
lutely to  sell  at  a  future  time,  and  a  conditional  contract  is 
conditionally  to  sell.  In  the  one  case,  he  says  the  perform- 
ance of  the  contract  is  suspended,  and  transferred  to  a  future 
time ;  in  the  other,  the  very  existence  and  performance  of  the 
contract   de})cnds    upon   a  contingency:    Story   on    Contracts, 

§  246. 

As  between  the  immediate  parties  to  the  contract,  the  prin- 
ciple above  mentioned  is  inflexibly  adhered  to.     There  is  scmie 
diversity  of  views  with  respect  to  its  application  as  against 
creditors  of  the  vendee  and  bona  fide  purchasers  from  him,  for 
full  value.     In  some  of  the  Courts,  it  has  been  held  that  con- 
ditions in  contracts  of  sale,  that  title  shall  not  pass  until  pay- 
ment of  the  purchase-money,  are   not  good  as  against  those 
claiming  under  the   vendee  as  creditors  or  purchasers,  when 
possession  is  delivered  to  the  vendee.     Another  class  of  cases 
hold    that,   while   conditions  of   this  character   are   valid    as 
against  the  creditors  of  the  vendee,  they  are  invalid  as  against 
bona  fide  jiurchasers  from  him.     These  decisions  are  the  out- 
come of  the  doctri-ne  that  upon  a  sale  of  chattels,  possession 
inconsistent  with   the  actual   title  is,  fer  se,  fraudulent  and 
void,   as   against   creditors    and   bona  fide   purchasers.      This 
doctrine  is  not  in  force  in  this  State.     Our  Courts  have  held 
that   a   possession   which   is   consistent   with    the   agreement 
between  the  parties  is  not,  of  itself,  actually  or  constructively 
fraudulent:  Runyon  v.  Groshon,  1  Beas.  86;  Broadway  Bank 
V.  McElrath,  2  Id.  24;  Miller  ads.  Pancoast,  5  Dutcher,  250. 
A  vendor  who  delivers  possession  of  chattels  to  his  vendee, 
under  an  executory  contract  that  the  title  shall  pass  on  pay- 
ment of  the  contract  price,  may  forfeit  his  property  by  con- 
duct which  the  law  regards  as  fraudulent,  as  where,  in  addi- 
tion to  possession,  he  clothes  the  vendee  with   an   apparent 
title,  on  the  faith  of  which  third  persons  are  induced  to  act 
in  giving  credit  or  in  becoming  purchasers,  or  where  he  know- 
ingly permits  the  vendee  to  exercise  acts  of  ownership  over 


IN   PERSONALTY — SALES.  341 

the  property,  inconsistent  with  only  a  qualified  right  of  pos- 
session, to  the  injury  of  others.  In  such  cases,  the  question 
of  fraud  hecomes  one  of  fact,  to  be  decided  by  a  jury  upon 
the  circumstances  of  the  particular  case.  But  where  the  case 
presents  no  other  features  than  that  the  vendor  has  entered 
into  a  contract  of  sale  on  credit,  and  has  delivered  the  goods 
to  the  vendee,  upon  an  agreement  that  they  shall  remain  the 
property  of  the  vendor  until  payment  of  the  [lurchase-money, 
the  property  in  the  goods  remaitis  in  the  vendor  until  pay- 
ment be  made,  without  being  subject  to  execution  at  the  suit 
of  the  creditors  of  the  vendee,  and  the  title  of  the  vendor  is 
preferred  to  that  of  purchasers  from  the  vendee. 

Possession  by  the  vendee,  under  a  contract  of  sale  containing 
a  stipulation,  whether  verbal  or  in  writing,  that  the  property 
shall  not  pass  until  payment  of  the  contract  price,  is  not  fraudu- 
lent, and  creditors  of  the  vendee  cannot  seize  the  property 
under  execution  until  the  condition  be  performed:  Bump  on 
Fraud.  Con.  150.  In  Herring  v.  Hoppock,  15  K  Y.  409,  the 
plaintiff  delivered  a  safe  to  Brooks  &  Hopkins,  on  a  contract 
of  sale  as  follows: — 

"  New  York,  February  6, 1852. 

"  Received  from  Silas  C.  Herring,  one  Salamander  patent  safe, 
No.  4910,  delivered  to  us  this  day,  under  a  bargain  for  the  sale 
thereof,  and  for  which  we  have  given  our  note  at  six  months, 
for  $235.  And  it  is  expressly  understood  that  Herring  neither 
parts  with,  nor  do  we  acquire  any  title  to  said  safe,  until  said 
note  is  fully  paid  ;  and  in  case  of  default  in  the  payment 
thereof,  at  maturity,  said  Herring  is  hereby  authorized  to 
enter  our  premises  and  take  and  remove  said  safe,  and  collect 
all  reasonable  charges  for  the  use  of  the  same. 

"  Brooks  &  Hopkins." 

Brooks  &  Hopkins  failed  to  pay  the  note  mentioned  in  the 
agreement,  and  on  the  9th  of  August,  1852,  it  was  protested 
for  non-payment.  On  the  26th  of  June,  1852,  the  safe  was 
seized  and  sold  by  the  sheriff,  under  executions  against  Brooks 
&  Hopkins.  In  an  action  for  wrongfully  taking  and  convert- 
ing the  safe,  the  Court  held  that,  under  the  contract  in  ques- 
tion, the  property  of  the  vendor  was  not  divested,  and  that 
23 


342  ILLUSTRATIVE   CASES 

he  could  recover  its  value  of  the  execution-creditor,  by  whose 
direction  the  safe  was  sold,  under  an  execution  against  the 
vendee.  In  Cole  v.  Mann,  3  N.  Y.  Sup.  Ct.  380,  the  plaintiffs, 
who  were  dealers  in  pianos,  shipped  a  piano  to  one  Jenne, 
under  an  agreement  that  the  piano  should  renmin  the  property 
of  the  plaintiffs  till  paid  for,  and  that  if  Jenne  made  sale  of 
the  piano,  he  should  remit  proceeds  sufficient  to  pay  a  note  he 
gave  for  the  contract  price.  It  was  held  as  against  an  execu- 
tion-creditor of  the  consignee,  that  title  did  not  pass  from  the 
consignor,  and  that  the  property  was  not  liable  to  levy  and 
sale  under  an  execution  against  the  consignee. 

As  to  creditors,  a  sale  and  delivery  of  a  chattel,  on  condi- 
tion that  the  title  shall  remain  in  the  vendor  until  the  price 
be  paid,  vests  no  title  in  the  vendee  before  payment,  which 
shall  be  subject  to  levy  under  an  execution  against  the  vendee: 
Marston  v.  Baldwin,  17  Mass.  606;  Blanchard  v.  Child,  7 
Gray,  155;  Porter  v.  Pettengill,  12  K  H.  299;  McFarland 
V.  Farmer,  42  Id.  386  ;  Gaylor  v.  Dyer,  5  Cranch  C.  C.  461 ; 
Strong  V.  Taylor,  2  Hill,  326;  Forbes  v.  Marsh,  15  Conn. 
384-395. 

With  regard  to  purchases  from  a  vendee  in  possession 
under  a  contract  of  sale,  a  distinction  is  observed  between  the 
vendor's  right  to  rescind  the  sale  for  fraud,  and  his  right  to 
resume  possession  where  goods  have  been  delivered  under  a 
conditional  contract  of  sale.  Where  the  sale  is  upon  credit, 
but  is  absolute  in  terms,  and  the  vendor  intends  to  transfer 
property  as  well  as  possession,  the  property  passes  to  the 
vendee,  by  the  contract  of  sale,  leaving  in  the  vendor  only  a 
right  of  rescission  for  fraud.  He  may,  in  that  case,  re-possess 
himself  of  the  property,  notwithstanding  a  levy  upon  it, 
under  an  execution  against  the  vendee:  Williamson  v.  'N.  J. 
S.  R.  R.  Co.,  2  Stew.  811.  The  title  passing  to  the  vendee, 
by  the  contract,  and  Leing  vested  in  him  until  the  sale  be  dis- 
affirmed, an  innocent  purchaser  for  value  may,  before  disaffirm- 
ance of  the  sale,  acquire  an  indefeasible  title,  though  the  sale 
be  voidable  as  between  the  original  parties:  White  v.  Garden, 
10  C.  B.  919;  Stevenson  ?;.  Kewnham,  13  Id.  285-302;  Mow- 
rey  v.  Walsh,  8  Cow.  238;  Root  v.  French,  13  Wend.  570; 
Hoffman  v.  Noble,  6  Mete.  G8.     But  where  the  vendee  is  in 


IN    PERSONALTY — SALES.  343 

possession  under  a  condilionul  contract  of  sale,  he  has  no 
property  to  convey  to  a  purchaser,  and  the  vendor's  title  never 
having  been  divested,  he  may  reclaim  the  property,  if  the 
condition  be  not  performed,  even  as  against  a  purchaser  for 
value  in  good  faith.  In  Ballard  v.  Burgett,  40  N".  Y.  315, 
the  contest  was  between  the  vendor  and  a  Lcma  fde  purchaser 
of  the  pro[>erty  from  the  vendee.  The  Court  lield  that,  under 
a  conditional  contract  to  purchase,  one  of  the  terms  of  which 
was  that  the  chattel  which  was  delivered  to  the  vendee  should 
remain  the  property  of  the  vendor  until  the  contract  price  was 
paid,  the  title  remained  in  the  vendor  against  a  cw/a  ^c/e  pur- 
chaser, who  bought  of  the  vendee  in  good  fiith,  and  paid  full 
value,  without  notice  of  the  rights  of  the  vendor.  Decisions 
of  other  Courts  to  which  we  lire  accustomed  to  look  for  correct 
expositions  of  the  common  law,  are  to  the  same  efiect:  Dresser 
Mfg.  Co.  V.  Waterston,  3  I^Ietc.  9  ;  Coggill  v.  Hartford  k  Xcw 
Haven  R.  R.  Co.,  3  Gray,  545  ;  Sargent  v.  !Metcalf,  5  Id.  300  ; 
Burbaidv  v.  Crooker,  7  Id.  158  ;  Deshon  ?•.  Bigelow,  8  Id.  159; 
Hirschorn  v.  Canney,  98  ^lass.- 149  ;  Zuchtman  v.  Roberts,  109 
Id.  53  ;  Benner  v.  Puffer,  114  Id.  37G  ;  D'Wolf  v.  Babbett,  4 
Mason,  289  ;  Copland  v.  Bosquet,  4  Wash.  C.  C.  508  ;  Tibbetts 
i\  Towle,  12  Me.  341  ;  Haven  v.  Emery,  33  K.  II.  m  ;  Kimball 
V.  Jackman,  42  Id.  242. 

The  cases  cited  above  as  holding  the  doctrine  that,  on  a 
conditional  sale,  pro])erty  continues  in  the  vendor  as  against 
creditors  of  and  pureliasers  from  the  vendee,  though  posses- 
sion is  delivered  to  the  latter,  are,  it  seems  to  me,  founded  on 
correct  principles.  In  Pennsylvania,  a  distinction  is  taken 
between  delivery  under  a  bailment,  with  an  option  in  the 
bailee  to  purchase  at  a  named  price,  and  a  delivery  under  a 
contract  of  sale  containing  a  reservation  of  title  in  the  vendor 
until  the  contract  price  be  paid,  it  being  held  that,  in  the 
former  instance,  property  does  not  pass  as  in  favor  of  credi- 
tors and  purchasers  of  the  bailee,  but  that,  in  the  latter 
instance,  delivery  to  the  vendee  subjects  the  property  to  exe- 
cution at  the  suit  of  his  creditors,  and  makes  it  transferable 
to  bona  fide  purchasers:  Chamberlain  v.  Smith,  44  Pa.  431; 
Rose  V.  Story,  1  Id.  190  ;  Marsh  v.  Mathiot,  14  S.  &  R.  214; 
Haak    v.    Linderman,  04    Pa.  499.      This   distinction    is   dis- 


344  ILLUSTRATIVE   CASES 

credited  bj  the  great  weight  of  authority,  which  puts  posses- 
sion under  a  conditional  contract  of  sale  and  possession  under 
a  bailment  on  the  same  footing — liable  to  be  assailed  by  credi- 
tors and  purchasers  for  actual  fraud,  but  not  fraudulent  -per 
se.  Besides  the  cases  already  cited  on  that  subject,  numerous 
decisions  of  like  import  are  referred  to  by  Mr.  Perkins,  in 
his  edition  of  Benjamin  on  Sales,  §  320,  note.  From  the 
hypothesis  that,  inter  partes,  no  title  passes  to  the  vendee, 
under  a  contract  of  sale  which  is  conditional  as  to  the  transfer 
of  title,  until  the  condition  is  performed,  the  only  deduction 
that  can  rationally  be  made  is  that,  in  such  a  transaction,  the 
title  of  the  vendor  must  also  prevail  over  the  rights  t)f  the 
creditors  of  a  purchaser  from  the  vendee,  whose  rights  cannot, 
rise  higher  than  the  source  from  which  they  are  derived, 
unless  they  can  show  a  title  superior  to  that  of  the  vendee 
whom  they  represent,  arising  from  some  conduct  of  the  vendor 
which  the  law  denominates  as  fraudulent.  Possession  is  evi- 
dence of  title,  but  is  not  title,  and  in  this  State  possession  by 
a  party,  not  in  accordance  with  the  actual  state  of  the  title,  is 
not,  p^r  se,  fraudulent. 

The  judgment  should  be  reversed. 

DAELIITGT0:N^,  p.  p.,  so  ;  Contra— Murch  v.  Wright,  46  III. 

Call  V.  Seymour,  40  Ohio  State,    487. 
670; 


Bona  Fide  Purchasers. 

CoGGiLL  et  al.  V.  Hartfoiid,  etc.,  Ey. 

Supreme  Judicial  Court  of  Massachusetts,  1854. 

3  Gray,  545. 

BiGELOW,  J.  It  has  long  been  the  settled  rule  of  law  in  this 
Commonwealth,  that  a  sale  and  delivery  of  goods,  on  condition 
that  the  property  is  not  to  vest  until  the  purchase-money  is 
paid  or  secured,  does  not  pass  the  title  to  the  vendee,  and  that 
the  vendor,  in  case  the  condition  is  not  fulfilled,  has  a  right  to 
repossess  himself  of  the  goods,  both  against  the  vendee  and 
against  his  creditors,  claiming  to  hold  them  under  attachments : 


IN   PERSONALTY— SALES.  345 

Hussey  v.  Thornton,  4  Mass.  405;  Marston  v.  Baldwin,  17  M. 
606  ;  Barrett  v.  Pritchard,  2  Pick.  512;  Whitwell  v.  ViiiecMt, 
5  Id.  449  ;  Hill  v.  Freeman,  3  Cush.  257. 

In  the  case  at  bar,  the  jury  have  found  that  the  original  sale 
and  delivery  by  the  plaintifis  were  conditional.  But  the  de- 
fendants claim  to  hold  the  goods  in  controversy,  as  bailees  of  a 
bonajide  purchaser  from  the  original  vendee,  on  the  ground  tliat, 
having  purchased  them  in  good  faith,  the  rule  above  stated  is 
not  applicable,  and  that  a  valid  title  to  the  property  is  vested 
in  such  purchaser.  This  position  is  supposed  to  be  supported 
by  a  dictum  of  Chief  Justice  Parsons,  in  Hussey  v.  Ttiornton, 
by  which  it  is  implied  that  in  such  cases  the  vendor  cannot 
reclaim  goods  in  tlie  possession  of  bona  Jide  purchasers  from  his 
vendee.  But  the  authority  of  this  dictum^  so  far  as  it  ever  had 
any,  was  entirely  overthrown  in  Ayer  v.  Bartlett,  6  Pick.  78, 
where  Chief  Justice  Parker  said  that  it  could  not  be  sustained 
as  a  general  proposition.  Some  of  the  elementary  writers  have 
stated  such  a  doctrine  in  unqualified  terms ;  but  the  authorities 
cited  by  them  in  its  support  do  not  sustain  the  text :  Ililliard 
on  Sales,  §§  95  etscq.  ;  Story  on  Sales,  §  313.  Chancellor  Kknt, 
after  stating  the  rule  as  to  vendees  and  attaching  creditors,  in 
conformity  with  the  decisions  above  cited,  adds,  that  as  to  bona 
fide  purchasers,  the  rule  might  be  otherwise  :  2  Kent  Com. 
(6th  ed.)  498.  In  Ilill  v.  Freeman,  3  Cush.  259,  the  most  recent 
case  on  the  subject  in  our  own  reports,  the  Court  say,  that  tlic 
ri^-ht  of  the  vendor  to  reclaim  property  in  such  cases,  in  the 
hands  of  bonajide  purchasers,  is  an  open  question. 

Looking,  then,  at  this  case,  as  we  think  we  ma}',  as  one  not 
depending  on  authority,  but  to  be  determined  on  just  and  sound 
principles,  it  is  difficult  to  see  any  good  and  satisfactory  reason 
for  the  distinction,  which  is  attempted  to  be  made,  between  the 
riirhts  of  the  vendee  and  his  creditors  to  goods  sold  and  deliv- 
ered  on  condition,  and  those  of  boimjide  purchasers.  All  the 
cases  turn  on  the  principle,  that  the  compliance  with  the  con- 
ditions of  sale  and  delivery  is,  by  the  terms  of  the  contract, 
precedent  to  tlie  transfer  of  the  property  from  the  vendor  to  the 
vendee.  The  vendee,  in  such  cases,  acquires  no  property  in  the 
goods.  He  is  only  a  bailee  for  a  specific  purpose.  The  delivery 
which  in  ordinary  cases  passes  the  title  to  the  vendee  must  take 


346  ILLUSTRATIVE    CASES 

effect  according  to  the  agreement  of  the  parties,  and  can  operate 
to  vest  the  property  only  when  the  contingency  contemplated 
by  the  contract  arises.  The  vendee,  therefore,  in  such  cases, 
having  no  title  to  the  property,  can  pass  none  to  others.  He  has 
only  a  bare  right  of  possession  ;  and  those  who  claim  under 
him,  either  as  creditors  or  purchasers,  can  acquire  no  higher  or 
better  title.  Such  is  the  necessary  result  of  carrying  into  effect 
the  intention  of  the  parties  to  a  conditional  sale  and  delivery. 
Any  other  rule  would  be  equivalent  to  the  denial  of  the  valid- 
ity of  such  contracts.  But  they  certainly  violate  no  rule  of  law, 
nor  are  they  contrary  to  sound  policy.  The  cases  above  cited 
expressly  recognize  them  as  legal  and  valid  contracts  between 
the  vendor,  on  the  one  hand,  and  the  vendee  and  his  creditors, 
on  the  other.  If  valid  to  this  extent,  it  necessarily  follows  that 
they  are  so  for  all  purposes.  If  the  property  does  not  pass  out 
of  the  vendor  for  one  purpose,  it  certainly  does  not  for  another. 
If  it  remains  in  him  at  all,  it  is  because  such  is  the  agreement 
of  the  parties,  and  it  cannot  be  divested  by  any  act  of  the  ven- 
dee until  the  contract  is  fulfilled.  A  boriajide  purchaser,  as  well 
as  an  attaching  creditor,  must  acquire  his  title  through  the 
vendee.  If  the  latter  has  no  title,  he  can  communicate  none. 
The  purchaser  and  the  attaching  creditor  are,  in  this  respect, 
upon  the  same  footing.  No  equities  can  intervene  to  give  the 
former  a  better  right  as  against  the  original  vendor  than  the 
latter;  they  are  in  ceqiiailjure.  Neither  of  them  has  a  legal 
title  to  hold  the  property. 

A  mere  possession  by  the  vendee  carries  with  it  no  right  or 
authority  to  transfer  the  title.  That  continues  in  the  vendor 
until  the  conditions  of  sale  and  delivery  are  complied  with  by 
the  vendee,  or  are  waived  by  the  vendor.  And  this  constitutes 
the  precise  distinction  between  a  sale  and  delivery  of  goods  on 
condition,  and  a  sale  procured  b}'  fraud  or  false  representations 
on  the  part  of  the  vendee.  In  the  latter  case,  the  property 
passes  by  the  sale  and  delivery,  because  such  was  the  agreement 
and  intent  of  the  parties.  Therefore,  the  vendee,  having  the 
property'  as  well  as  the  possession  of  the  goods,  can  pass  a  good 
title  to  a  purchaser,  who  takes  the  goods  in  good  faith  and 
without  notice  of  the  fraud.  But  the  vendor  can  reclaim  the 
goods  by  rescinding  the  contract  and  avoiding  the  sale,  so  long 


I 


IN   PERSONALTY — SALES.  347 

as  tlicy  remain  in  the  hands  of  the  vendee,  or  of  any  one  who 
has  taken  them  with  notice  of  the  fraud,  or  without  paying  a 
vahiable  consideration  lor  them.  In  such  case,  tlie  title  to  the 
goods  is  in  the  vendee,  thougli  defeasible  at  the  option  of  the 
vendor,  because  the  vendee,  or  those  claiming  under  him  with 
knowledge  of  the  fraud,  cannot  honestly  or  legally  hold  the 
property  as  against  him.  But  in  the  case  of  a  conditional  sale 
and  delivery,  the  title  does  not  pass  from  the  vendor  until  the 
condition  is  fulfilled.  The  vendee  obtains  no  right,  under  such 
sale,  to  dispose  of  the  property,  but  only  to  hold  it  until  the 
terms  of  the  contract  are  complied  with  :  White  v.  Garden,  10 
C.  B.  919,  70  Eng.  Com.  Law. 

It  is  urged,  and  this  we  suppose  to  be  the  main  argument  on 
which  the  contrary  doctrine  is  founded,  that  as  possession  of 
personal  property  is  prima  facie  evidence  of  title,  it  would  fur- 
nish fraudulent  parties  with  the  means  of  defrauding  honest 
purchasers,  to  intrust  them  with  the  apparent  ownership  of 
property,  while  the  real  title  is  allowed  to  remain  in  a  third 
party,  who  can  reclaim  it  at  pleasure.  If  a  vendor,  by  collu- 
sion with  his  vendee,  entered  into  the  contract,  and  annexed 
the  conditions,  for  the  purpose  of  enabling  the  latter  to  obtain 
a  false  credit,  or  to  impose  on  innocent  persons,  by  means  of 
the  property  placed  in  his  possession,  the  argument  would  be 
decisive.  In  such  case,  the  vendor,  being  a  party  to  a  fraud, 
would  be  estopped  to  set  up  any  title  to  the  property  ;  and 
creditors,  as  well  as  innocent  purchasers  of  the  vendee,  might 
well  claim  to  hold  it,  on  the  ground  that  it  was  placed  in  his 
possession  for  a  fraudulent  purpose.  But  when  the  contract  of 
sale  is  entered  into  in  good  faith,  for  the  purpose  of  enabling 
the  vendor  to  realize  his  purchase-money,  or  obtain  security  for 
it,  in  conformity  with  the  original  terms  of  the  bargain,  the 
argument  ab  inconvenienii  is  without  any  foundation  in  ])rinci- 
ple  or  authority.  The  general  rule  of  the  common  law  has 
always  been  that  a  man  who  has  no  authority  to  sell  cannot, 
by  making  a  sale,  transfer  the  property  to  another :  Chit.  Con. 
(8th  Amer.  ed.)  342.  Except  in  cases  of  sales  in  market  overt, 
which  do  not  exist  in  this  Commonwealth,  possession,  of  itself, 
confers  no  authority  to  sell.  A  lessee  of  cliattels  or  a  bailee 
for  a  special  purpose  can  pass  no  title  to  a  vendee,  without 


348  ILLUSTRATIVE   CASES 

authority  from  the  lessor  or  bailor ;  and  yet  the  property  is 
intrnsted  to  their  possession,  as  apparent  owners,  in  the  same 
manner  as  to  a  vendee  under  a  conditional  sale.  13esides,  there 
is  no  good  reason  or  equity  in  placing  the  burden  of  a  fraudu- 
lent sale  by  a  vendee,  in  violation  of  the  condition  on  which 
he  received  the  property,  upon  a  bovafda  vendor,  rather  than 
upon  a  bona  fide  purchaser.  On  the  contrary,  if  either  is  to  lose 
by  his  fraudulent  act,  it  should  be  the  latter,  who  has  dealt 
with  a  party  having  no  authority,  instead  of  the  former,  who 
relies  upon  a  valid  subsisting  contract  as  the  foundation  of  his 
claim.  It  is  the  duty  of  the  purchaser  to  inquire,  and  see  that 
his  vendor  has  a  good  title  to  the  property  which  he  under- 
takes to  sell.  These  views  are  supported  by  the  authorities: 
Long  on  Sales  (2d  Amer.  ed.)  189,  and  cases  cited  ;  Copland  v. 
Bosquet,  4  Wash.  C.  C.  588  ;  D' Wolf  v.  Babbett,  4  Mason,  294 ; 
Luey  V.  Bundy,  9  K  H.  298  ;  Porter  v.  Pettengill,  12  N.  H. 
299 ;  Herring  v.  Willard,  2  Sandf.  418  ;  Barrett  v.  Pritchard, 
2  Pick.  512;" Dresser  Manuf.  Co.  v.  Waterston,  3  Met.  9. 

The  instructions  given  to  the  jury,  in  the  present  case,  were 
in  conformity  with  these  principles;  and  were  carefully 
guarded,  so  as  to  prevent  the  plaintifis  from  recovering  if  they 
had  been  guilty  of  laches  in  reclaiming  their  property,  or  had 
in  any  way  waived  the  conditions  on  which  the  property  in 
controversy  was  sold  and  delivered  to  the  original  vendee. 

Exceptions  overruled. 

DAKLINGTON,  P.  P.,  80  ;  Contra— Peek  et  al.  v.  Heim  et  al, 

2  Sch.  Per.  Prop.,  ?  300  ;  127  Pa.  500  (17  Atl.  984) ;  Jennings 

Ballard  r.  Burgelt,  40  N.  Y.  314  ;  v.  Gage,  13  111.  611. 

Harkness   v.  Russell  &  Co.,  118  AVhere  title  to  property  is  retained 

y   g_  (j(33  .  by  seller,  has  he  any  rights  in  or  to 

Bayliss  v.  Pearson,  15  Iowa,  279  ;  the  property  which  the  buyer  takes 

ShiVeman  r.  Jackson,  14  Ind.  459  ;  in  exchange  therefor?    Deadman  v. 

Brown  v.  Fitch,  43  Conn.  512.  Earle,  12  S.  W.  Eep.  330,  52  Ark. 

Hotchkissu  Hunt,  49  Maine,  213  ;  104  ;  Gen.  Laws  of  Minn.,  1885,  Ch. 

Pi  field  V.  Elmer,  25  Mich.  48,  full  210;  Gen.  Statutes,  1878,  p.  531,  §  15. 

jjQte.  Construction— Brinkhara  v.  Cen- 
tral Bank,  22  S.  AV.  Rep.  813. 


IN   PEKiONALTY — SALES.  349 

n. 

RISK. 

a. 

"Loss   follows    the   Title." 

Terry  v.  AViieeler. 

Court  of  Ajipeals,  New  York,  1862. 

25  N.  Y.  520. 

Selden,  J.  There  may  be  some  doubt  whether  the  parol 
evidence  in  regard  to  the  agreement  to  deliver  the  lumber  was 
admissible,  but  if  it  were  necessary  to  decide  that  question,  I 
should  regard  it  as  admissible,  on  the  ground  that  what  is 
called  the  bill  of  sale  was  in  substance  a  mere  receipt  for  the 
purchase-money,  and  did  not  purport  to  be  a  contract:  Dunn 
V.  Hewitt,  2  Denio,  637;  Blood  v.  Harrington,  8  Pick.  552; 
Filkins  v.  Whyland,  24  K  Y.  338.  If  the  lumber  had  not 
been  paid  for,  and  the  instrument,  omitting  the  receipt,  had 
been  signed  by  the  defendant  and  delivered,  as  a  note  or 
memorandum  of  the  sale,  it  would  then  have  been  the  evidence 
of  a  contract,  executory  on  one  part  at  least,  and  not  open  to 
explanation  by  parol.  But  looking  at  the  whole  instrument, 
I  think  it  is  to  be  regarded  as  a  receipt,  and  not  a  contract, 
within  the  cases  above  cited.  Of  course,  in  this  view,  the 
memorandum  at  the  foot  of  the  bill  is  not  regarded  as  a  part 
of  it;  if  it  were,  its  character  would  be  changed  from  a  receipt 
to  an  executory  contract,  conclusive  upon  the  parties,  except 
so  far  as  it  was  still  a  receipt:  Eggleston  v.  Knickerbocker,  6 
Barb.  458. 

The  point  which  is  made  upon  the  contradictory  character 
of  the  evidence  in  relation  to  the  contract  to  deliver  the  lum- 
ber on  the  cars,  and  its  sufficiency  to  establish  such  contract, 
presents  only  a  question  of  fact  which  this  Court  cannot  re- 
view. Where  the  finding  of  a  Court  or  referee  upon  a  ques- 
tion of  fact  is  ambiguous,  the  evidence  may  bo  referred  to  for 


330  ILLUSTRATIVE    CASES 

the  purpose  of  removing  the  ambiguity,  but  not  to  reverse  or 
modify  a  distinct  finding,  or  to  establish  an  independent  fact 
not  found :  19  N.  Y.  210  ;  21  Id.  550  ;  22  Id.  324 ;  23  Id.  344. 
A\^e  can  no  more  review  tlie  decision  of  the  Court,  that  the  tes- 
timony was  not  conflicting,  than  we  can  the  conclusion  that  it 
was  sufficient;  and  we  can  do  neither  without  making  a  prece- 
dent which  would  open  to  review  here  the  details  of  the  evi- 
dence in  all  cases. 

But  in  the  view  which  I  take  of  the  remaining  question,  it 
becomes  immaterial  whether  there  was  a  contract  to  deliver  at 
the  cars  or  not.  The  lumber  had  not  been  actually  delivered, 
but  remained  in  the  possession  of  the  vendor.  In  the  absence 
of  any  express  contract  to  deliver,  there  was  an  implied  one 
to  deliver  at  the  yard  of  the  vendor,  when  called  for.  In 
either  case  the  lumber  did  not  remain  at  the  risk  of  the  ven- 
dor, if  the  title  did  not  remain  in  liim.  The  risk  attends  upon 
the  title,  not  upon  the  possession,  where  there  is  no  special 
agreement  upon  the  subject:  Tarling  v.  Baxter,  6  B.  &  C.  360, 
13  Eng.  Com.  Law  ;  Willis  v.  Willis,  6  Dana,  49  ;  Hinde  v. 
Whitehouse,  7  East,  558 ;  Joyce  v.  Adams,  4  Seld.  296 ;  2 
Kent's  Com.  492,  496  ;  Noy's  Maxims,  88.  I  entertain  no 
doubt  that  upon  the  facts  found  in  this  case,  the  title  was  in  the 
vendee.  The  lumber  was  selected  by  both  parties  and  desig- 
nated as  the  lumber  sold  to  Elmore,  except  the  600  pieces, 
which  were  selected  by  the  parties,  and  the  precise  pieces  sold 
designated  with  as  much  precision  as  if  the  purchaser  had 
marked  every  piece  with  his  name ;  that  which  was  sold  by 
measurement  was  inspected  and  measured,  and  the  quantity 
ascertained  ;  the  price  for  the  whole  was  agreed  upon  and  paid, 
and  a  bill  of  parcels  receipted  and  delivered  to  the  purchaser. 
These  facts,  I  think,  vested  the  title  in  the  purchaser,  notwith- 
standino-  the  agreement  of  the  seller  to  deliver  the  lumber  free 
of  charge  at  the  cars.  "  The  sale  of  a  specific  chattel  passes 
the  property  therein  to  the  vendee,  without  delivery :"  Chitty 
on  Contr.,  8th  Am.  ed.,  p.  332.  "  It  is  a  general  rule  of  the 
common  law  that  a  mere  contract  for  the  sale  of  goods,  where 
nothing  remains  to  be  done  by  the  seller  before  making  deliv- 
ery, transfers  the  right  of  property,  although  the  price  has  not 
been  paid,  nor  the  thing  sold  delivered  to  the  purchaser:"  Oly- 


IN    PERSONALTY—  SALES. 


351 


j.liant  V.  Baker,  5  Denio,  382.     The  autlKMities  are  numerous, 
where  the  expression   is  used  that  if  anything  remains  to  be 
done  by  the  seller,  the  title  does  not  pass ;  but  the  cases  wiiich 
are  referred  to  to  sustain  that  position   oidy  go  the  length  of 
showing  that  where  something   is  to  be  doiiL'  by  tiie  seller  to 
ascertain  the  identity,  quantity  or  quality  of  the  article  sold, 
or  to  put  it  in  the   condition  which   the  terms  of  the  contract 
require,  the  title  does  not    pass:     2  Kent's  Com.  496  ;    Hanson 
V.   My er,  6  East,  614  ;    Simmons  v.  Swift,  5  13.  &  C.  857,  11 
Eng.  Com.  Law  ;  Joyce  v.  Adams,  4  Seld.,  291  ;  Field  v.  Moore, 
Laior's   Sup.  418.     The  list  of  cases  to  this  etiect  might  be  in- 
detiintely  increased  ;  but  no  case   has  been  referred  to  by  coun- 
sel, nor  have  I  discovered  any,  in  which,  where  the  article  sold 
was  perfectly  identified  and    jiaitl  for,  it  was  held  that  a  stipu- 
lari(in  of  the  seller  to  deliver   at   a  ]iarticular  j.lace  prevented 
the  title  from  passing.     If  the  payment  was  to  be  made  on  or 
after  delivery,  at  a  i»articular  place,  it  might  fairly  be  inferred 
that  the  contract  was  executory,  until  such  delivery  ;  but  where 
the  sale  appears  to  be  absolute,  the  identity  of  the  thing  fixed, 
and  the  price  for  it  paid,  I  see  no  room   for  an   inference  that 
the  property  remains  the  seller's  merely  because  lie  lias  engaged 
to  transport  it  to  a  given  point.     I  think  in  such  case  the  pro- 
perty passes  at  the  time  of  the  contract,  and  that  in  carrying 
it,  the  seller  acts  as   bailee  and   not  as  owner.     The  questions 
which  arise  in  such  cases,  as  to  sales,  are  questions  of  intention, 
such  as  arise  in  all  other  cases  of  the  interpretation  of  con- 
tracts;  and  when  the  facts  are  ascertained,  either  by  the  writ- 
ten agreement  of  the  parties  or  by  the  findings  of  a  Court,  as 
they  are  here,  they  are  questions  of  law.     That  the  parties  to 
the  contract  in  this  case  intended  to  pass  the  title  to  the  lumber 
immediately, appears  very  clear;  nor  do  I  suppose  that  any  one 
would  question  it,  were  it  not  for  the  apparent  hardship  of  the 
case  to  the  purchaser.     If  the  property,  instead  of  being  lum- 
her,  had  been   sheep  or   cows,  capable  of  increase  (which  fol- 
lows the  ownership),  and  there  had  been  a  sudden   and  large 
increase  to  the  flock,  or  drove,  before  they  could  be  delivered 
at  the  point  agreed  upon,  I  think  no  one  would  liave  said  that 
the  defendant  could  have  discharged  his  obligation  to  deliver, 
and  yet  retained   the  increase.     Such,  however,  must   be  the 


352  ILLUSTRATIVE    CASES 

conclusion,  if  the  plaintiff's  [losition  is  maintained.     The  judg- 
ment hIiouUI  be  reversed,  and  a  new  trial  granted. 
Judgment  reversed,  and  new  trial  ordered. 

DARLINGTON,  P.  P.,  §  80;  Buyer  is   barred   by  his   (thsobde 

The  risk  may  be  fixed  by  agree-  prmmc  in  a  conditional  sak; :  Tufts 

nient  of  the   parties  :    The   Elgell  v.  Grittiu,  107  N.  C.  47  (12  S.  E.  68). 

Cottou  Case,  22  Wall.  180. 


WARRANTY. 

A  warranty  "  is  a  collateral  undertaking,  forming 
part  of  the  contract  by  the  agreement  of  the  parties, 
express  or   implied:"      2   Benjamin   on   Sales,    §  929. 


I. 

EXPRESS. 

Warder  v.  Bowen. 

Supreme  Court  of  Minnesota,  1883. 

31  Minn.  335. 

Berry,  J.  This  is  an  action  to  recover  $275,  which  plaintiffs 
claim  that  defendant  agreed  to  pay  them  as  boot  between  his 
mower  and  harvester  and  binder,  and  their  mower  and  har- 
vester and  binder.  The  machines  were  respectively  delivered 
by  each  party  to  the  other.  The  deience  is  that  plaintiffs 
warranted  their  harvester  and  binder  in  respect  to  lightness  of 
drauo-ht ;  that  the  agreement  was  that  defendant  should  take 
it  upon  trial,  and,  if  it  did  not  fulfill  the  warranty,  plaintiffs 
should  take  it  back  ;  that  he  took  it  accordingly,  and,  finding 
upon  trial  that  it  did  not  run  as  warranted,  notified  plaintiffs 
thereof,  and  that  he  should  not  keep  it,  and  also  returned  it  to 
them.  Upon  the  issues  raised  by  the  reply,  which  denied  the 
allegations  of  the  answer,  the  defendant  had  a  verdict.  This 
appeal  is  taken  from  an  order  denying  plaintiffs'  motion  for  a 
new  trial,  and   presents  three  principal   questions,  viz. :    Was 


IN    PERSONALTY — SALES.  353 

there  evidence  (1)  of  tlie  wnrnmt}-  ;  (2)  of  tlie  breach  ;  (3)  of  a 
return  withhi  a  reasonable  time? 

As  to  the  facts  of  the  warranty  ajid  tlie  bivach,  tlion<::h 
testimony  is  contiictinii;,  there  is  enough  havin<r  a  reasonable 
tendency  to  establish  tliem.  To  constitute  a  warranty  in  law, 
neither  the  word  "  warrant,"  nor  any  cjuivalcnt  word,  is  indis- 
pensable. A  clear  and  j'ositive  afhrmation  or  representation 
of  the  quality  of  a  thing  sold,  when  made  by  a  seller  as  a  j»art 
of  a  contract  of  sale,  and  relied  upon  by  the  j»urchaser,  is  a 
warranty  :  Hawkins  v.  Peinberton,  51  ^N".  Y.  198 ;  Zimmerman 
V.  Morrow,  28  Min.  367  ;  Torkelson  v.  Jorgenson,  28  Minn.  383  ; 
2  Benjamin  on  Sales,  §  929. 

Was  there  sufficient  evidence  of  a  return  of  the  warranted 
harvester  and  binder  within  a  reasonable  time?  The  time 
within  which  a  required  act  is  done  may  be  so  palpably  unrea- 
sonable as  to  authorize  a  Court  to  pronounce  it  so  as  a  matter 
of  law :  Boothley  v.  Scales,  27  Wis.  626,  and  cases  cited.  Yet, 
ordinarily,  the  question  of  reasonable  time  is  for  a  jury  :  Coch- 
ran V.  Toher,14  Minn.  293  (385);  Roberts  v.  Mazeppa  Mill  Co., 
30  Id.  •113.  Upon  such  a  question  "  the  rules  of  ordinary 
practice  and  convenience  become  the  legal  measure  and  stand- 
ard of  right:"  1  Stark.  Ev.  517. 

We  perceive  nothing  to  take  this  case  out  of  the  ordinary 
rule.  The  defendant  was  reasonably  entitled  to  retain  the 
machine  for  a  time  sufficient  to  aflbrd  him  a  fair  opportunity 
to  test  it  thoroughly,  for  the  pur[)Ose  of  ascertaining  whether 
it  answered  the  warranty,  and  this  time  might  be  prolonged 
by  the  assent  of  the  plaintiti's  or  their  agent:  Boothley  r. 
Scales,  supra.  The  defendant  appears  to  have  expressed  to  the 
agent  of  plaintitfs  his  dissatisfaction  with  the  "  draught"  of 
the  machine  within  two  or  three  days  after  his  grain  was  in  a 
condition  to  try  it,  and  after  he  began  to  try  it,  and  thereafter- 
wards  to  have  continued  the  trial  at  the  express  solicitation  of 
the  agent,  from  time  to  time,  for  a  few  days  longer  and  until 
(the  agent  having  come,  according  to  appointment,  to  see  it 
work  and  assist  in  making  it  work)  he  distinctly  informed  him 
that  it  was  not  satisfactory,  and  that  he  would  n.)t  kcc])  it  ;  that 
it  was  the  plaintiffs'  machine,  and  lie  would  th'Mi  and  there 
assist  him  in  loatling  it   upon   his  wagon   if  he  wished  him  to 


354  ILLUSTRATIVE    CASES 

do  SO.  In  the  course  of  two  or  three  days  dei'eiidant  hauled 
the  machine  to  Lake  City,  and  there  returned  it  to  plaintiffs' 
agent,  before  the  beginning  of  the  wheat  harvest.  Upon  such 
a  state  of  facts  it  is  impossible  to  say,  as  a  matter  of  law,  that 
the  defendant's  delay  in  returning  the  machine  was  unreason- 
able. The  question  of  reasonable  time  was  clearly  one  of  fact 
for  a  jury,  and  the  learned  trial  Judge  correctly  so  held  and 
instructed. 

This  disposes  of  the  principal  matters  in  the  case.  As  to 
the  use  of  the  machine  to  cut  Pruden's  grain  (aside  from  the 
fact  that  the  jury  might  well  consider  this  to  be  entirely  proper 
in  making  a  fair  trial  of  it),  it  is  enough  that  it  was  done  with 
the  co-operation  of  plaintiffs'  agent  while  the  machine  was  on 
trial. 

There  was  no  error  in  excluding  the  offer  to  show  that  de- 
fendant did  not  return  the  machine  until  after  the  season  for 
the  sale  of  it  had  passed,  for,  whatever  the  fact  might  be,  it 
did  not  alter  or  impair  defendant's  right  to  have  a  fair  oppor- 
tunity to  test  the  machine  or  to  continue  the  trial  of  it  as  long 
as  he  was  urged  to  do  so  by  plaintiffs'  agent. 

Order  afBrmed. 

Leggatef  al.  v.  Sands's  Ale  Brew-  Smith  v.  Richards,  13  Peters,  26  ; 

ing  Co.,  GO  111.  158  ;  Marsh  v.  AVebber,  13  Minn.  109  ; 

Randall   ct   al.   v.    Thornton,   43  Chanter  v.  Hopkins,  4  M.  &  W. 

Maine,  226 ;  399. 

Hahn  v.  Doolittle,  18  Wis.  196  ;  Remedy— Scott  v.  Raymond,  31 

Warren  v.  Phila.  Coal  Co.,  83  Pa.  Minn.  437  ;  Thompson  v.  Libby,  34 

436 ;  Id.  374. 


Patent   Defects. 

McCoRMicK  V.  Kelly. 

Supreme  Court  of  Minnesota,  1881. 

28  Minn.  135. 

Dickinson,  J.  This  action  was  brought  to  recover  the  amount 
of  a  promissory  note  made  by  the  defendant  to  the  plaintiffs, 
for  part  of  the  purchase-price  of  a  harvester  purchased  by  the 


IN    PERSONALTY — SALES.  355 

former  from  the  latter.  The  making  of  tlie  note  is  not  in 
issue  ;  the  only  defence  asserted  being  in  the  nature  of  a  counter- 
claim for  damages  from  an  alleged  breach  of  wan-anty,  on  the 
part  of  the  plaintiffs,  in  respect  to  the  harvester. 

By  his  answer  the  defendant  avers  that  he  first  took  the 
machine  on  trial,  and  that,  upon  trial,  it  proved  to  be  unsatis- 
factory and  would  not  do  good  work,  and  that  he  notified  the 
plaintiffs  to  take  the  machine  away  ;  whereu[ton  the  i>laintifis 
promised  and  agreed  with  the  defendant  to  i)Ut  the  machine  in 
good  order  an<l  to  furnish  certain  parts  of  the  n)ailiine  new, 
and  warranted  the  machine  to  be  well  made,  of  good  material, 
durable,  and  not  liable  to  l)reak  or  get  out  of  oider ;  that  it 
would  cut  and  elevate  grain  as  avcH  as  any  other  machine,  and 
was  in  all  respects  a  first-class  machine,  and  capable  of  doing 
first-class  and  satisfactory  work  as  a  harvesting  machine;  rely- 
ing upon  which  promises,  agreements,  and  warranties,  defend- 
ant purchased  the  macliine,  giving  the  note  in  question.  The 
answer  further  alleges  that  the  plaintifi's  refused  to  put  the 
machine  in  good  order,  or  to  furnish  new  parts  for  the  machine, 
and  sets  forth  a  breach  of  the  terms  of  the  warranty. 

By  a  reply  the  plaintiffs  put  in  issue  the  making  of  a  war- 
ranty, as  well  the  agreement  to  furnish  new  parts  for  the  ma- 
chine. The  evidence  on  the  p.'irt  of  the  defendant  tended  to 
prove  that  he  got  the  macliine  i'or  ti-ial  before  the  commence- 
ment of  the  harvest  of  1878;  that  it  did  not  work  well, 
although  he  used  it  to  cut  about  70  acres  of  grain  ;  that  he 
often  made  complaint  to  the  agents  of  the  plaintiffs,  who  urged 
him  to  keep  the  machine,  and  do  the  best  he  could  with  it; 
and  that  after  harvest  the  agent  of  plaintiffs  represented  that 
it  was  as  good  a  machine  as  there  was  in  the  market,  and  he 
would  make  it  so ;  that  it  was  all  right,  and  would  do  as  gooil 
work  as  any  machine  in  market,  and  it  should  be  fixed  iifi  i;i 
first-class  order,  with  the  new  j)arts  referred  to  in  the  answer  ; 
that  the  defendant  purchased  the  machiiie  then,  and  gave  the 
note,  relying,  as  he  testifies,  upon  the  representations  n)ade. 
The  evidence  tends  to  show  that  at  this  time  the  defendant 
knew  the  defects  in  the  machine  of  wliieh  he  now  complains. 

At  the  request  of  the  defendant  the  Court  iiistructc(l  the 
jurj'  as  follows:  "  If  the  jury  find,  from  tlie  evidence,  that  the 


356  ILLUSTRATIVE    CASES 

plaintifts  expressly  warranted  the  machine  for  which  the  note 
in  suit  was  given,  and  that  the  defendant  was  induced  by  such 
warranty  to  execute  and  deliver  said  note,  the  plaintifis  are 
liable  for  all  damages  which  the  defendant  has  sustained  by 
reason  of  the  breach  of  such  warranty,  and  this  liability  is  not 
affected  by  the  fact  that  the  defendant  tried  said  machine  be- 
fore the  making  of  said  warranty."  To  this  the  plaintiffs 
excepted. 

At  the  request  of  the  plaintiffs  the  Court  instructed  the  jury 
as  follows :  "  I  charge  you  that  where  a  general  warranty  is 
given  on  the  sale  of  a  machine,  defects  that  were  apparent  at  the 
time  of  the  making  of  the  bargain,  and  were  fully  known  to 
the  purchaser,  cannot  be  relied  upon  as  a  defence  to  a  note 
given  for  such  machine,  when  the  purchaser  has  such  knowl- 
edge at  the  time  of  siviufj;  the  same.  (2)  If  vou  find  that  the 
machine  was  taken  on  trial  under  a  contract  to  purchase, 
and  that,  after  having  fully  tried  it,  the  defendant  gave  his 
note  therefor,  he  cannot  offset  against  any  such  note  damages 
arising  from  any  alleged  breach  of  warranty  against  delects 
known  to  the  defendant  at  the  time  of  settlement  and  giving 
of  the  note." 

The  Court  further  instructed  the  jury  in  the  following  lan- 
guage :  "  A  vendor  may  warrant  against  a  defect  that  is  patent 

and  obvious You  sell  me  a  horse,  and  you  warrant  that 

horse  to  have  four  legs,  and  he  has  only  three.  I  will  take 
vour  word  for  it."  The  Court  then  read  in  the  hearing  of  the 
jury  the  following  from  Addison  on  Contracts :  "  When  a 
general  warranty  is  given  on  a  sale,  defects  which  were  apparent 
at  the  time  of  the  making  of  the  bargain,  and  were  known  to 
the  purchaser,  cannot  be  relied  on  as  a  ground  of  action.  If 
one  sells  purple  to  another,  and  saith  to  him,  '  This  is  scarlet,' 
the  warranty  is  to  no  purpose,  for  that  the  other  may  perceive 
this ;  and  this  gives  no  cause  of  action  to  him.  To  warrant  a 
thing  that  may  be  perceived  at  sight  is  not  good."  The  Court 
then  said  to  the  jury  :  "  Gentlemen,  that  is  not  the  law  of  this 
State." 

The  Court  erred  in  these  instructions  to  the  jury.  It  has 
always  been  held  that  a  general  warranty  should  not  be  con- 
sidered as  applying  to  or  giving  a  cause  of  action  for  defects 


IN    PERSONALTY — SALES. 


357 


known  to  the  parties  at  the  time  of  making  the  warranty,  and 
both  the  weiglit  of  authority  and  reason  authorize  this  proposi- 
tion, viz.,  that  for  representations  in  the  terms  or  form  of  a 
warranty  of  personal  property,  no  action  will  lie  on  account  of 
defects  actually  known  and  understood  by  the  purchaser  at  the 
time  of  the  bargain  :  Marjeston  v.  Wright,  7  Bing.  603 ;  Dyer 
V.  Ilargrave,  10  Ves.  Jr.  506  ;  Schuyler  v.  Russ,  2  Caines,  202 ; 
Kemier  V.  Harding,  85  III.  264;  Williams  v.  Ingram,  21  Texas, 
300  ;  Marshall  v.  Drawhorn,  27  Ga.  275  ;  Shewalter  v.  Ford, 
34  Miss.  417;  Brown  v.  Bigelow,  10  Allen,  242;  Story  on 
Cont,  §  830 ;  Benjamin  on  Sales  (2d  ed.),  502  ;  Ciiitty  on  Cont. 
(11th  Am.  ed.)  644.  A  warranty,  for  the  breach  of  the  con- 
ditions of  which  an  action  ez  contractu  for  damages  can  be  main- 
tained, must  be  a  legal  contract,  and  not  a  mere  naked  agreement. 
It  must  be  a  representation  of  something  as  a  fact,  upon  which 
the  purchaser  relies,  and  by  which  he  is  induced,  to  some  ex- 
tent, to  make  the  purchase,  or  is  influenced  in  respect  to  the 
price  or  consideration  :  Oneida  Manuf's  Society  v.  Lawrence,  4 
Cow.  440  ;  Lindsey  v.  Lindsey,  34  Miss.  432  ;  Blythe  v.  Speake, 
23  Texas,  429 ;  Adams  v.  Johnson,  15  111.  345  ;  Ender  v.  Scott, 
11  Id.  35  ;  Hawkins  v.  Berry,  10  Id.  36 ;  2  Add.  on  Cont. 
(Morgan's  ed.)  §  626.  In  the  nature  of  things  one  cannot 
rely  upon  the  truth  of  that  which  he  knows  to  be  untrue;  and 
to  a  purchaser  fully  knowing  the  facts  in  respect  to  the  prop- 
erty, misrepresentation  cannot  have  been  an  inducement  or 
consideration  to  the  making  of  the  purchase,  and  hence  could 
have  been  no  part  of  the  contract. 

It  has  often  been  said  that  a  general  warranty  may  cover 
patent  defects,  and  it  has  led  to  some  misapprehension  of  the 
law.  The  projiosition  is  strictly  true,  but,  as  was  said  b}-  the 
Court  in  Marshall  v.  Drawhorn,  supra,  it  is  "  confined  to  those 
cases  of  doubt  and  difficulty  where  the  purchaser  relies  on  his 
warrant}-,  and  not  on  his  own  judgment."  It  has  no  applica- 
tion to  the  case  of  a  purchaser  who  knows  the  defects  in  the 
property  and  the  untruthfulness  of  the  vendor's  representations. 
We  do  not,  however,  mean  to  say  there  may  not  be  a  warranty 
against  the  future  consequences  or  results  from  even  known 
defects. 

The  fact  tliat  a  portion  of  the  charge  given  at  the  request  of 
24 


358  ILLUSTRATIVE   CASES 

the  plaiutifis  stated  correctly  the  legal  princii.le  under  con- 
sideration, cannot  aiFect  the  result.  In  fact,  that  the  instruc- 
tions to  the  jury  were  thus  inconsistent,  and  calculated  to 
mislead  or  confuse,  rather  than  inform  and  guide  the  jury,  is, 
in  itself,  a  sufficient  reason  why  the  verdict  should  not  stand  : 
Vanslyck  v.  Mills,  34  loAva,  375  ;  C.  B.  &  Q.  R.  Co.  v.  Payne, 
49  111.  499. 

For  the  reasons  already  indicated,  a  new  trial  must  he 
awarded,  and  it  is  unnecessary  to  consider  whether  the  verdict 
is  supported  by  the  evidence  presented  in  this  case ;  nor  is  it 
necessary  to  consider  some  other  alleged  errors,  involving  no 
doubtful  questions  of  law,  and  which  are  not  likely  to  recur 
upon  another  trial.  Anticipating,  however,  that  upon  the  re- 
trial, as  in  the  former  one,  the  question  may  arise  as  to  the 
authority  which  an  agent  empowered  to  sell  machinery  of  the 
kind  in  question  may  be  presumed  to  possess  in  respect  to  the 
w^arranting  of  the  property,  in  the  absence  of  any  proof  of  ex- 
press authority,  we  will  pass  upon  the  question  as  it  is  pre- 
sented by  the  facts  in  this  case.  For  the  purposes  of  this  case 
it  is  sutficient  to  say  that  an  agent,  engaged  for  his  principal  in 
the  business  of  selling  personal  property,  is  presumed  to  he 
authorized  to  sell  with  warranty.  It  may  be,  however,  that  if 
the  property  be  of  a  kind  not  usually  sold  with  warranty,  no 
such  presumption  will  be  exercised:  Nelson  v.  Cowing,  6  Hill, 
336;  Smith  v.  Tracy,  36  K  Y.  79;  Schuchard  v.  Aliens,  1 
Wall.  359  ;  Upton  v.  Suffolk  County  Mills,  11  Cush.  586  ; 
Eoothby  v.  Scales,  27  Wis.  626  ;  Ahern  v.  Goodspeed,  72  [N".  Y. 
108 ;  Murray  v.  Brooks,  41  Iowa,  45.  In  the  case  of  such  an 
ao-ent  engaged  in  selling  harvesters,  without  proof  of  express 
authority  to  warrant,  the  Court  will  presume  such  authority. 

Order  reversed,  and  a  new  trial  awarded. 

But  see  as   to  patent  defects    in  bury  v.  Bennett,  31  Iowa,  83  ;  Ho- 

cases  of  doubt— Hill  v.  North,  34  gins  v.  Plympton,  11  Pick.  97. 

Yt_  604,  I"^  written  contracts  it  is  for  the 

Expression  of  Opinion— Fauntle-  Court  to  decide  whether  there  is  a 

roy  V.  Wilcox,  80  111.  477.  warranty  ;  in  oral  contracts  it  is  for 

Semplex  Comniendatio— Tewkes-  the  jury  :  Horn  v.  Buck,  48  Md. 

358. 


IN   PERSONALTY — SALES.  359 


II. 

IMPLIED. 

One  who  sells,  as  his  personal  property  hi  his 
possession,    impliedly   warrants    his   title    to   it. 

Gross  v.  Kierski. 

Supremo  Court  of  California,  1871. 

41  Cal.  111. 

"Wallace,  J.  Tlie  defendant,  a  dealer  in  musical  instruments, 
sold  and  delivered  to  the  plaiutift'  a  piano-forte,  nothing  being 
said  at  the  time  concerning  the  title  to  the  chattel.  This  was 
in  February,  1867.  In  August,  1869,  certain  persons,  claiming 
and  ultimately  showing  themselves  to  be  the  owners  of  the 
chattel,  commenced  an  action  against  Gross  for  its  recovery. 
The  latter  thereupon  gave  notice  to  his  vendor,  the  defendant, 
of  the  bringing  of  the  action.  In  September  following  judg- 
ment [.assed  against  Gross.  In  October  the  piano-forte  was  taken 
from  his  possession,  arid  in  iN'ovember,  1869,  he  brought  the 
present  action  against  Kierski  for  breach  of  the  warranty  of 
title  to  the  chattel.  The  Court  below  gave  judgment  for  the 
plaintiff,  and  to  reverse  that  judgment  this  appeal  is  brought. 

The  vendor  of  goods  and  chattels  in  possession  is  held,  by 
implication  of  law,  to  warrant  the  title.  This  rule  was  recog- 
nized by  this  Court  in  the  case  of  Miller  v.  Van  Tassel,  24  Cal. 
458,  and  may  be  said  to  have  become  firmly  ingrafted  in  the 
jurisprudence  of  this  country,  whatever  may  be  the  doubts  at 
present  surrounding  it  in  England,  as  indicated  in  the  recent 
cases  of  Morley  v.  Attenborough,  3  A\^elsby,  Ilurlstone  &  Gor- 
don Exch.  R.  507,  and  Sims  v.  Marryat,  17  Q.  B.  290,  where  it 
was  said  by  Lord  Campbell,  C.  J.,  that  "on  that  point  the  law 
is  not  in  a  satisfactory  state.'' 

In  the  case  at  bar  this  general  rule  is  not  questioned  by  the 
defendant,  but  it  is  claimed  that  the  action  here  was  not  brought 
within  two  years  next  after  the  breach  of  the  warranty,  and  is 
therefore   barred   by   the  Statute   of   Limitations,  which   was 


360  ILLUSTRATIVE   CASES 

pleaded  below,  and  is  insisted  upon  in  this  Court;  and  this 
presents  the  only  question  to  be  determined. 

The  statute  undoubtedly  commenced  to  run  from  the  earliest 
time  at  which  the  plaintitt'  might  have  sued.  This  would,  of 
course,  be  that  period  at  which  the  breach  must  be  considered 
to  have  happened.  And  this  is  the  precise  question  upon  which 
the  parties  are  at  issue  here — the  defendant  claiming  that  his 
warranty  was  broken  in  February,  1867,  when  he  sold  and 
delivered  the  chattel,  and  the  plaintiif  insisting  that  the  breach 
did  not  occur  until  October,  1869,  when  the  property  was  taken 
by  the  true  owner. 

In  an  action  brought  against  the  vendor  of  chattels  upon  an 
express  warranty  of  title,  the  authorities  are  believed  to  be 
uniform  upon  the  point  that  there  is  no  breach  in  contempla- 
tion of  law  until  the  vendee's  possession  of  the  goods  is  in  some 
way  disturbed,  by  reason  of  the  title  of  the  true  owner. 

No  substantial  ditierence  in  this  respect  is  perceived  between 
an  express  warranty  of  title  made  by  a  vendor  upon  sale  of 
chattels  out  of  possession  and  the  warranty  of  title  implied  by 
law  upon  a  sale  of  goods  in  possession.  The  fact  of  the  goods 
being  out  of  the  possession  of  the  vendor  may  well  be  considered 
to  put  the  vendee  upon  his  guard,  and  it  is  his  own  folly  if, 
under  such  circumstances,  he  will  not  protect  himself  by  exact- 
ing an  express  agreement  to  warrant  the  title.  The  doctrine  of 
caveat  emptor  would  apply  to  such  a  case. 

But  when  the  goods  are  at  the  time  in  the  possession  of  the 
vendor,  who  deals  with  them  as  owner,  and  under  such  circum- 
stances sells  and  delivers  them  to  the  purchaser,  the  law  will 
imply  against  the  vendor  that  he  warrants  the  title  to  the 
property  sold.  This  implication  is  indulged  for  the  protection 
of  the  purchaser  against  what  would  otherwise  be  the  fraud  of 
the  vendor,  practised  upon  him  when  he  is  himself  not  charge- 
able with  negligence ;  for  it  is  unreasonable  to  exact  of  the 
purchaser  of  goods  that  he  is  in  every  case  to  institute  an 
inquiry  into  the  title  of  his  merchant,  upon  pain  of  losing 
both  the  goods  and  their  price.  The  purpose  of  the  law  in 
implying  the  warranty  is  the  protection  of  the  purchaser;  it 
determines  that  the  vendor  did  warrant  the  title  to  the  goods, 
because  it  considers  that,  under  the  circumstances,  he  ought  to 


IN    PEUSONALTY — SALES.  361 

have  done  so.  It  declares  that  his  silence  shall  be  taken  to  be 
a  warranty  of  the  soundness  of  liis  title.  The  sale  and  delivery 
of  the  goods  in  [lossessioii,  wliere  nothing  is  said  about  the  title, 
is,  therefore,  precisely  equivalent  to  an  express  warranty  of  title, 
and,  the  facts  being  ascertained,  the  rights  and  liabilities  of  the 
parties  are  exactly  the  same. 

It  is  true  that  the  Court  of  Appeals  of  Kentucky  hold  that 
there  is  a  distinction  between  an  express  warranty  of  title  to 
ciiattels  and  the  warranty  of  title  implied  by  law.  The  express 
warranty  is  likened  to  a  covenant  to  warrant  and  defend  the 
title,  when  inserted  in  a  deed  of  conveyance  of  lands,  and  is, 
therefore,  said  to  be  unbroken  until  an  eviction  by  the  true 
owner,  under  jiaramount  title,  has  taken  place.  The  implied 
warranty  is,  however,  compared  to  a  covenant  of  seizin,  which 
is  said  to  be  broken,  if  at  all,  at  the  instant  that  it  is  entered 
into.  As  a  consequence,  it  is  the  settled  rule  in  that  State  that 
the  Statute  of  Limitations  upon  breach  of  an  express  warranty 
of  title  to  personal  property  commences  to  run  from  the  time 
when  the  vendee  is  disturbed  ;  while  in  case  of  implied  warranty 
it  is  set  in  motion  instantly  upon  the  sale  and  delivery  of  the 
goods:  4  Bibb.  304;  2  :Marsh.  217;  4  B.  Monroe,  201 ;  1  xMetc. 
Ky.  R.  572.  For  the  distinction  thus  made  I  think  that  no 
good  reason  can  be  shown.  Its  operation  would,  in  many 
instances,  deprive  the  purchaser  of  the  very  protection  which 
it  is  the  purpose  of  the  implication  to  afibrd.  Nor  is  it  clear 
that  the  analogy  supposed  to  exist  between  the  covenant  of 
seizin  and  the  implied  warranty  of  chattels  can  be  maintained. 
Mr.  Rawle,  in  his  treatise  on  the  covenant  of  seizin  (Rawle  on 
Gov.,  3d  ed.  50),  assumes  that  the  implied  warranty  of  title  to 
chattels  is  understood  to  be  "a  title  sufficient  to  retain  the 
possession  in  the  vendee  of  the  chattels,"  and  in  illustration  of 
the  distinction  between  seizin  in  fact  and  seizin  in  law,  as  to 
real  property,  he  says:  "An  analogy  may  be  found  in  the  rule 
with  respect  to  chattels.  In  the  sale  of  these  a  warranty  of 
title  is  implied  by  the  civil  and  the  common  law,  ,  ,  Yet  a 
subsequent  loss  of  possession  by  title  paramount  will  be  a  bivach 
of  this  warranty,  because  the  vendor  is  understood  to  have  agreed 
lawfully  to  transfer  a  possession  which  can  be  retained,"  etc. 

The  doctrine  of  the  Court  of  Appeals  of  Kentucky  is  believed 


362  ILLUSTRATIVE    CASES 

to  be  unsupported  either  by  text-writers  upon  the  law  or  the 
adjudications  of  the  Courts  of  other  States  of  the  Union. 

In  Word  v.  Cavin,  1  Head,  507,  the  Supreme  Court  of  Ten- 
nessee held  that,  upon  breach  of  the  implied  warranty  of  title 
to  chattels  the  Statute  of  Limitations  commenced  to  run  upon 
the  possession  of  the  chattel  being  lost,  or  upon  voluntary  offer 
by  the  vendee  to  restore  it  to  the  seller. 

Linton  v.  Porter,  31  111.  107,  was  an  action  upon  a  promissory 
note  given  upon  the  purchase  of  a  chattel  with  imjjlied  warranty 
of  title.  The  Supreme  Court  of  Illinois  held  that  it  was  no 
defence  to  say  that  the  vendor  had  no  title  while  the  possession 
of  the  vendee  remained  undisturbed  by  the  true  owner. 

In  Case  v.  Hall,  24  Wend.  102,  upon  a  state  of  facts  substan- 
tially similar  to  those  in  Linton  v.  Porter,  the  defence  was 
overruled  on  the  ground  that  where  the  vendee  relies  upon  the 
warranty  of  title,  express  or  implied,  there  must  be  a  recovery 
by  the  real  owner  before  an  action  can  be  maintained.  See,  also, 
Vibbard  et  ah.  v.  Johnson,  19  Johns.  77;  Story  on  Sales,  sec. 
203 ;  Parsons  Merc.  Law,  2d  ed.  50,  and  cases  there  cited  in 
note ;  Hilliard  on  Sales,  3d  ed.  391,  and  cases  cited  in  note. 

It  results  from  these  views  that  the  plaintiffs  cause  of  action 
accrued  upon  the  loss  of  the  chattel  in  October,  1869,  and  the 
Statute  of  Limitations  will  not  avail  the  defendant. 

Judgment  affirmed. 

DAKLINGTON,  P.  R,  83,  362  ;  Thurston  v.  Spratt,  52  Maine,  202 ; 

2  Sch.  Per.  Prop.,  §  78  ;  Close  r.  Crossland,  47  Minn.  500. 

Davis  V.  Smitli,  7  Minn.  414  ;  Warranty  does  not  inure  to  buy- 

Scranton  v.  Clark,  39  N.  Y.  220  ;  er's  vendee.     Moser  v.  Hoch,  3  Pa. 

Whitney  v.  Hey  wood,  G  Cush.  86 ;  230. 


Constructive   Possession. 

Shattuck  v.  Green. 

Supreme  Judicial  Court  of  Massachusetts,  1870. 

104  Mass.  42. 

Morton,  J.     It  is  a  general  rule  of  law  in  this  country,  that 
in  a  sale  of  chattels  a  warranty  of  title  is  implied,  unless  the 


IN    PERSONALTY — SALES.  363 

circumstances  are  such  as  to  give  rise  to  a  contrary  presump- 
tion :  1  Smith  Lead.  Cas.  (Gth  Am.  ed.)  242 ;  1  Parsons  on 
Contracts  (5th  ed.),  57G,  and  cases  cited.  If  the  vendor  has 
either  actual  or  constructive  possession,  and  sells  the  chattels 
and  not  merely  his  interest  in  thenj,  such  sale  is  equivalent  to 
and  titKrmation  of  title,  and  a  warranty  is  implied.  In  Whitney 
V.  Iley  wood,  G  Cush.  82,  8G,  Dp:wey,  J.,  says,  "  Possession  here 
must  be  taken  in  its  broadest  sense,"  and  "  the  excepted  cases 
must  he  substantially  cases  of  sales  of  the  mere  naked  interest 
of  persons  having  no  possession,  actual  or  constructive,  and  in 
sucii  cases  no  warranty  of  title  is  implied."  The  possession  of 
an  a<::cnt  or  of  a  tenant  in  common,  holding  the  goods  for  the 
vendor  and  as  his  property,  and  not  adversely,  is  the  construct- 
ive possession  of  the  vendor;  and  if  he  sells  goods  thus  hold  as 
his,  a  warranty  of  title  is  implied  :  Hubbard  v.  Bliss,  12  Allen, 
590  ;  Gushing  v.  Breed,  14  Id.  37G. 

In  the  case  at  bar,  it  appeared  that  Shattuck,  on  December 
7,  1866,  bought  of  Wilks  AV.  Corey  an  undivided  half  of  the 
stock  in  trade,  furniture  and  fixtures  of  a  dining  saloon  in  Bos- 
ton, and  on  December  11, 18G6,  sold  the  same  to  Green.  Shat- 
tuck was  in  New  Ham[)shire,  and  did  not  take  manual  posses- 
sion of  the  property,  but  it  remained,  as  it  had  previously  been, 
in  the  possession  and  use  of  Core}'  &  Stiles,  who  were  carrying 
on  the  saloon,  said  Corey  being  a  son  of  Wilks  W.  Corey. 
Green,  after  the  sale  to  bin),  entered  into  possession  in  connec- 
tion with  the  younger  Corey,  and  remained  in  possession  until 
the  property  was  taken  by  the  National  Warehouse  Company 
under  a  paramount  title.  Thus  Corey  &  Stiles  were  in  actual 
possession  of  the  chattels  at  the  time  of  the  sale  to  Green. 
There  was  no  evidence  that  they  held  them  adversely  to  Shat- 
tuck, or  to  "Wilks  W.  Corey  and  Shattuck,  who  by  the  sale  of 
December  7  became  tenants  in  common.  On  the  contrary,  there 
was  evidence  which  might  well  satisfy  the  jury  that  they  held 
possession  of  them  as  the  bailees  or  agents  of  Wilks  W.  Corey 
and  Shattuck.  If  this  was  so,  and  Shattuck  sold  to  Green  one 
undivided  half  of  the  property  as  his,  there  was  an  implied  war- 
ranty of  title.  The  ruling  at  the  trial  that  the  jury  would  not  be 
authorized  to  find  an  implied  warranty  was  therefore  erroneous. 
The  argument  that  the  written  contract  between  the  parties 


864  ILLUSTRATIVE    CASES 

contains  no  express  warrant}',  and  excludes  an  implied  one,  can- 
not prevail.  The  parties  did  not  put  their  contract  in  writing. 
The  indorsement  on  the  bill  of  sale  does  not  purport  to  set  out 
the  contract  of  sale.  That  appears  to  have  been  by  parol ;  and 
the  fact  that  the  vendor  delivered  the  bill  of  sale,  with  such  as- 
signment on  it,  either  as  a  muniment  of  title,  or  as  a  symbolical 
delivery,  or  as  an  incident  of  the  transaction,  does  not  prevent 
his  liability  upon  the  implied  warranty  of  title. 

In  considering  these  exceptions,  we  are  obliged  to  assume  as 
true  all  the  facts  which  the  testimony  in  favor  of  the  excepting 
parties  tends  to  establish.  At  the  new  trial,  it  will  of  course 
be  for  the  jury  to  decide  whether  there  was  in  fact  a  sale  by 
Shattuck  to  Green,  or  whether  Shattuck  acted  merely  as  the 
agent  of  Green  in  the  purchase  of  Corey,  so  that  no  warranty 
of  title  would  be  implied  against  him. 

Exceptions  sustained. 

Close  V.  Crossland,  47  Minn.  500  ;  to  answer  for  the  title  :  Case  v.  Hall, 

After  acquired  title— Shermun  v.  24  Wend.  102. 

Champlaiu  Transportation  Co.,  31  No  implied  warranty  in  oflBcial 

Vt.  1G2,  sales  :  AUegre  v.  Tenant,  9  Wheat. 

Chattels  not  in  seller's  possession  OIG. 

— Huntingdon  v.  Hall,   36  Maine,  There  is  an  implied  warranty  of 

501.  title,  and  that  the  chattel  is  free 

If  seller  affirms  that  a  chattel  not  from  incumbrance  in  case  of  ex- 

in  his  possession  is  his,  he  is  bound  change,  as  well  as  sale.    47  Minn. 

500,  supra. 


IN    PERSONALTY— SALES.  365 


QUALITY. 

A. 

CHATTELS  SPECIFIED. 

In  the  sale  of  a  specific  chattel,  where  the  buyer 
has  inspected  the  same,  or  has  had  an  opportunity 
to  do  so,  there  is  no  implied  warranty  as  to  the 
quality    of    the    thing   sold. 

Frazieu  v.  Harvey. 

Supreme  Court  of  Errors,  Connecticut,  18G7. 

34  Conn.  4G9. 

An  action  upon  an  implied  warranty  as  to  the  soundness  of 
hogs  sold  by  the  defendants  to  the  plaintifi',  who  examined  the 
property  before  purchasing. 

HiNMAN,  C.  J.  This  action  is  on  a  warranty  of  soundness 
and  freedom  from  disease  on  a  sale  of  certain  hogs  by  the  de- 
fendants to  the  plaintiff.  There  were  also  joined  to  the  count 
on  the  warranty  the  common  money  counts.  On  the  trial 
there  was  conflicting  evidence  in  respect  to  the  warranty,  upon 
which  no  question  arises  here.  But  it  was  claimed  by  tlie 
plaintiff  that  if  he  had  not  proved  the  warranty  he  was  still 
entitled  to  recover  on  the  money  counts,  on  the  ground  of  a 
failure  of  the  consideration  paid  for  the  hogs,  as  he  had  proved, 
as  he  claimed,  that  at  the  time  of  his  purchase  of  them  they 
were  all  aflected  with  a  disease,  of  which  in  the  course  of 
three  or  four  weeks  they  all  died,  and  so  they  were  of  no  value 
whatever  at  that  time,  and  there  was  therefore  an  entire  failure 
of  the  consideration  ;  and  the  Court,  on  the  plaintiff's  request, 
charged  the  jury  that  if  they  found  the  facts  on  this  part  of 
the  case  to  be  as  claimed  by  the  plaintiff,  he  was  entitled  to 
recover  upon  the  money  counts  the  price  paid  by  him  for  the 
hogs,  with  the  interest  thereon  from  the  time  he  bought  them. 

This  part  of  the  charge  we  think  erroneous.     The  rule  of 


36G  ILLUSTRATIVE    CASES 

the  common  law  is,  that  Avhcrc  there  is  no  express  warranty, 
and  no  fraud  in  the  sale  of  personal  property,  the  purchaser 
takes  the  risk  of  its  quality  and  condition.  He  must  there- 
fore suffer  all  losses  arising  from  latent  defects  equally  un- 
known to  hoth  parties.  This  rule,  which  with  us  was  defi- 
nitely settled  hy  the  case  of  Dean  v.  Mason,  4  Conn.  432,  is 
now  too  well  understood  as  prevailing  wherever  the  Courts 
profess  to  be  governed  by  the  principles  of  the  common  law 
to  require  to  be  supported  by  the  citation  of  authorities.  But 
it  is  impossible  to  give  full  effect  to  this  rule  upon  the  idea 
that  the  charge  in  this  case  was  correct,  since  it  follows  as  a 
necessary  inference  from  the  rule  that  the  total  worthlessness 
of  the  article  sold  is  as  much  at  the  risk  of  the  purchaser  as 
can  be  any  partial  defect  which  only  impairs  to  some  extent 
its  value.  In  other  words,  the  rule  itself  would  be  abrogated 
in  all  those  cases  where  the  defect  in  the  qualit}'  is  such  as  to 
render  the  article  worthless.  But  the  plaintiff'  cites  in  sup- 
port of  a  different  doctrine  the  general  principle  to  be  found 
in  the  text-books,  that  where  the  consideration  of  a  contract 
fails  the  contract  may  be  avoided,  and  if  money  has  been  paid 
for  a  consideration  which  has  thus  failed  it  may  be  recovered 
back.  But  the  difficulty  in  the  plaintiff's  case  is,  that  there  is 
no  failure  of  consideration  where  the  purchaser  gets  precisely 
what  he  agreed  to  purchase.  Where  the  purchase  is  of  chattels 
having  a  commercial  value  in  the  market,  like  live  stock,  it  can- 
not be  said  of  them  that  they  are  wholly  worthless  while  the 
qualitj^  of  them  is  unknown,  or  a  secret  disease  by  which  they 
are  affected  is  undeveloped.  At  the  time  of  this  purchase  the 
animals  appeared  to  be  free  from  disease  and  to  be  sound.  Pre- 
sumptively the  fair  market  price  for  such  animals  was  paid  for 
them.  They  were  then  of  value  at  the  time  of  the  purchase, 
and  as  the  purchaser  takes  the  risk  of  the  quality  where  that 
is  equally  unknown  to  both  parties,  the  secret  defect  which 
was  afterwards  developed  should  have  been  guarded  against  by 
insisting  upon  a  warranty,  unless  the  purchaser  expected  and 
intended  to  suffer  any  loss  arising  therefrom.  The  plaintiff" 
has  referred  us  to  no  case  which  supports  his  view  of  the  law. 
This  of  itself  is  a  strong  argument  against  him  ;  and  there  are 
also  direct  authorities  to  the  effect  that  the  total  worthlessness 


IN    PEUSONALTY — SALES. 


367 


of  a  chattel  sold  does  not  aniouiit  to  a  lailui-e  of  con.sidei'ation 
where  the  purchaser  gets  what  he  eoiitcmjilated  when  he  made 
the  purchase;  as  where  putrid  fish  wholly  uiitit  for  use  as  food 
were  sold,  and  there  was  no  warranty  of  the  <|ualify,  the  [>laiiititt' 
claimed  to  recover  the  purchase-money  on  the  i^roui.d  of  the 
faihire  of  the  considei-ation  ;  hut  the  Court  said  that  if,  insteail 
of  stock  lish,  the  defendant  had  delivered  a  (puintity  of  sawdust, 
the  price  might  have  heen  recovered  hack  ;  hut  that  stock  fish 
were  delivered,  and  the  defendant  could  not  he  permitted  to 
try  whether  they  were  fit  for  use  in  an  action  for  money  had 
and  received  :  Fortune  v.  Lingham,  2  Camjib.  41G.  See,  also. 
Mason  V.  Chajipell,  15  Gratt.  572,  to  the  same  effect.  Indeed, 
there  are  many  cases  where  this  ground  could  have  been  suc- 
cessfully taken  if  it  had  heen  su})[)osed  to  be  tenable,  as  in 
Moses  V.  Mead,  1  Denio,  378,  and  t)ther  cases  cited  by  the  de- 
fendants' counsel  on  tlieir  brief. 

We  advise  the  Superior  Court  to  grant  a  new  trial. 

DAHLIXGTOX,  P.  r.,  83.  There  is  no  implied  warranty 
Wcliner  r.  Clement,  37  Pa,  147  ;  where  the  buyer  neglects  to  ex- 
Fitch  V.  Archibald,  29  N.  J.  Law,  amine,  or  makes  a  careless  exami- 

100  ;  nation  of  the  property  :   Byrne   v. 

Slaughter  v.  Gerson,  13  Wallace,  Jansen,  50  Calif.  G24  ;  McKuight  v. 

379  ;  Baillie,  19  Pa.  375. 
See  Hood  v.  Bloch,  29  AV.  Ya. 

244  (11  S.  E.  Rep.  210). 


(a.) 
PROVISIONS. 


GiRoux  V.  Stedman. 

Supreme  Judicial  Court  of  Massachusetts,  1888. 

145  Mass.  439. 

Devens,  J.  It  was  known  to  the  defendants  that  the  plain- 
tift's  purchased  the  meat  to  be  used  as  provisions,  but  it  was 
held  by  the  presiding  Judge  that,  in  order  that  they  should 
recover,  they  must  prove  tlie  allegations  in  tlieir  declarations, 
that   the   defendants  knew   that  the  meat  sold  hy  them  was 


368  ILLUSTRATIVE   CASES 

unwholesome  and  improper  to  be  used  as  provisions.  He 
instructed  the  jury  that,  at  common  law,  the  general  rule  is, 
that  where  personal  property  is  sold  in  the  presence  of  buyer 
and  seller,  each  having  an  opportunity  to  see  the  projicrty,  and 
there  is  nothing  said  as  to  the  quality,  the  only  im[ilie(l  war- 
ranty on  the  part  of  the  seller  is  that  he  has  a  valid  title  in,  or 
has  a  riiiht  to  sell,  the  chattel.  He  added,  that  there  is  an  ex- 
ception to  this  general  rule  where  a  provision  dealer  or  market- 
man  sells  provisions,  as  meat  and  vegetables,  to  his  customers 
for  use,  and  that  in  such  case  there  would  be  an  implied  war- 
ranty that  they  were  fit  for  use  and  wholesome. 

Whether  this  exception  exists  or  not,  it  is  not  important  in 
the  case  at  bar  to  inquire,  as  it  cannot  be,  and  was  not,  con- 
tended that  the  defendants  were  brought  within  it.  The  con- 
tention of  the  plaintifts  is,  that,  even  if  the  rule  is  well  estab- 
lished that  where  there  is  no  expressed  warranty  and  no  fraud, 
no  warranty  of  the  quality  of  the  thing  sold  is  implied  by  law, 
and  that  the  maxim  of  caveat  e?7?ptor  applies,  there  is  a  more 
general  exception  which  excludes  from  its  operation  all  sales 
of  provisions  for  immediate  domestic  use,  no  matter  by  whom 
made. 

That  in  a  sale  of  an  animal  by  one  dealer  to  another,  even 
with  the  knowledge  that  the  latter  dealer  intends  to  convert  it 
into  meat  for  domestic  use,  or  that  in  the  sale  of  provisions  in 
the  course  of  commercial  transactions  there  is  no  implied  war- 
ranty of  the  quality,  appears  to  be  well  settled :  Howard  v. 
Emerson,  110  Mass.  320,  and  cases  cited:  Burnby  v.  Bollett, 
16  M.  &  W.  644.  While  occasional  expressions  may  be  found, 
as  in  Van  Bracklin  v.  Fonda,  12  Johns.  4C8,  wdiich  sustain  the 
plaintiffs'  contention,  we  have  found  but  one  decided  case  which 
supports  it.  In  Van  Bracklin  v.  Fonda,  ubi  supra,  it  is  said 
that  in  a  sale  of  provisions  the  vendor  is  bound  to  know  that 
they  are  sound,  at  his  peril,  but  the  case  shows  that  the  de- 
fendant, who  had  sold  beef  for  domestic  use,  knew  the  animal 
from  which  it  came  to  be  diseased.  This  had  been  found  by 
the  jury,  and  the  remark  is  made  in  connection  with  the  facts 
proved. 

The  case  of  Hoover  v.  Peters,  18  Mich.  51,  does  sustain  the 
plaintiffs'  contention,  as  it  is  there  held,  that  where  articles  of 


IN    PERSONALTY — SALES.  3G9 

food  are  bought  for  doriK'stic  c()iismniiti()ii,aii(l  tlie  vcnJor  sells 
them  for  that  express  jmrjiosc,  the-  law  iniplics  a  warranty  tliat 
they  arc  fit  for  such  laii-posc,  wlicfhcr  the  sale  be  ruade  by  a 
retail  dealer  or  by  any  other  person.  This  case  imposes  u 
heavier  liability  on  a  person  not  engaged  in  the  sale  of  pro- 
visions as  a  business  than  he  should  be  called  on  to  beai-.  The 
opinion  is  not  supported  by  any  (.-itation  of  authorities.  In  a 
dissenting  opinion  by  Mr.  Justice  Ciiristiancy  it  is  said,  "  Had 
it  appeared  that  he  [the  defendant]  was  the  keeper  of  a  meat 
market  or  butcher's  shop  and  was  engaged  in  the  business  of 
selling  meat  for  food,  and  therefore  bound  or  presumed  to  know 
whether  it  was  fit  for  that  purpose,  I  should  have  concurred  in 
the  opinion  my  brethren  have  expressed."  If  there  is  an  ex- 
ception to  the  rule  of  caveat  emptor  which  grows  out  of  the 
circumstances  of  the  case  and  the  relations  of  buyer  and  seller, 
where  the  latter  is  a  general  dealer  and  the  former  a  purchaser 
for  immediate  use,  there  appears  no  reason  why  it  should  be 
further  extended. 

In  the  case  at  bar,  the  defendants  were  not  common  dealers 
in  provisions,  or  marketmen.  They  were  farmers  selling  a  por- 
tion of  the  produce  of  their  farms.  Xo  representations  of  the 
quality  of  the  meat  sold  was  made  by  them.  In  making  casual 
sales  from  a  farm  of  its  products,  to  hold  the  owner  to  the  duty 
of  ascertaining  at  his  peril  the  condition  of  the  articles  sold, 
and  of  impliedly  warranting,  if  sold  with  the  knowledge  that 
they  are  to  be  used  as  food,  that  they  arc  fit  for  the  purpose, 
imi)Oses  a  larger  liability  than  should  be  placed  upon  one  who 
may  often  have  no  better  means  of  knowledge  than  the  pur- 
chaser. 

The  plaintifis  contend  that  the  case  of  French  v.  Vining,  102 
Mass.  132,  is  decisive  in  their  favor,  but  it  appears  to  us  other- 
wise. In  that  case  the  defendant  sold  hay,  which  he  knew  had 
been  poisoned,  for  the  pur[)Ose  of  being  fed  to  a  cow,  although 
he  had  carefully  endeavored  to  separate  the  damaged  portion 
from  the  rest,  and  supposed  he  had  succeeded.  From  the  ettects 
of  eating  the  hay  the  cow  died,  and  the  defeiulant  was  held 
liable.  His  knowledge  of  the  injury  to  the  hay  was  certain 
and  positive;  his  belief  that  he  had  remedied  the  difficulty  was 
conjectural  and  uncertain,  and  proved  to  be  wholly  erroneous. 


370  ILLUSTRATIVE    CASEg 

In  the  case  at  bar,  while  the  defeiKlaiits'  herd  had  been  ex- 
posed to  hog  cholera,  there  was  evidence  that  a  portion  ot  it 
only  had  been  atiected,  and  further,  that,  even  if  affected,  the 
lueal  of  the  animals  was  not  necessarily  unwholesome.  There 
was  no  evidence  that  the  animals  whose  meat  was  sold  had 
ever,  so  far  as  the  defendants  knew,  actually  had  the  disease; 
and  the  verdict  of  the  jury  has  established  that  they  were  igno- 
rant that  the  meat  sold  by  them  was  unwholesome. 

In  French  v.  Vining,  the  defendant  knew  what  the  condition 
of  the  hay  had  been,  and  this  is  a  vital  part  of  the  case.  He 
sold  an  article  which  he  knew  had  been  poisoned,  and  from 
which  he  had  taken  no  effectual  means  to  remove  the  poison. 
His  belief  or  supposition  that  his  effort  had  been  successful 
could  not  relieve  him  from  liability  for  the  consequences  that 
ensued  because  it  had  been  unsuccessful,  if  he  sold  the  hay 
without  informing  the  purchaser  of  the  dangerous  injury  which 
it  had  received. 

Exceptions  overruled. 

DARLINGTON,  P.  P.,  84-85  ;  Ryder  v.  Neitge,  21  Minn.  70  ; 

2  Benj.  on  Sales,  I  1012  ;  Winsor  v.  Lombard,  18  Pick.  57. 


(b.) 
EXCEPTIONS. 

Some  American  cases  hold  that  there  is  an  implied 
warranty  as  to  the  quality  of  provisions  sold  for 
immediate   consumption    or  domestic   use. 

Sinclair  v.  Hathaway. 

Supreme  Court  of  Michigan,  1885. 

57  Mich.  60. 

Campbell,  J.  Plaintiff*  sued  defendant  for  a  balance  claimed 
to  be  due  for  bread.  Defendant  claimed  that  the  account  had 
been  balanced  by  bad  bread  returned,  and  by  a  sum  of  ten  dol- 
lars paid  in  settlement  of  accounts. 

Plaintiff'  was  a  baker,  and  defendant's  business  was  to  sup- 


IN    PEK^ONALTY — SALT?.  371 

ply  bread  to  cnsfomors  about  tbe  cit}-.  It  appears  that  for  a 
period  defei)daiit  was  enii)loyed  by  plaintitt"  to  sell  liis  bread, 
and  make  returns  and  pay  for  tbe  bread  furnished  daily.  De- 
fendant claims  that  on  several  occasions  the  bread  furnished 
was  bad  and  unwholesome,  and  that  he  returned  it  to  a  suf- 
ficient extent  to  overbalance  his  payments,  and  that  thci-e  was 
an  understanding  to  that  effect.  The  parties  are  directly  at 
variance  on  the  facts.  Tiiere  was  a  good  deal  of  testimony 
showing  that  bread  was  often  made  unfit  for  use,  and  that 
plaintiff  had  to  sell  it  for  feeding  animals.  lie  swore  there 
was  never  any  such  thing. 

The  Court  below  I'ightly  excluded  evidence  of  a  Sunda}'  con- 
tract before  the  business  was  entered  into.  Jjut  there  was 
testimony  of  subsequent  dealings  tending  to  prove  the  theory 
of  the  defence. 

The  case  being  an  appeal  from  a  justice,  it  was  shown  and 
seems  to  have  been  admitted  that  in  the  justice's  Court  plain- 
tiff swore  that  the  amount  due  him  was  only  !?6o,  while  in  the 
Circuit  he  swore  to  $103.79,  and  recovered  it.  The  Court  was 
asked  to  charge  the  jur}'  that  if  [jlaintiff*  so  swore  below,  and 
so  changed  his  testimony  without  exi)laining  why,  that  circum- 
stance should  weigh  with  the  jury  against  the  good  faith  of 
the  claim.  The  Court  refused  so  to  charge,  but  in  the  charge 
the  Court  made  this  remai'k:  "Defendant  also  states  that  the 
complainant  only  claimed  $Qc>  in  the  justice's  Court,  but  the 
complainant  undertakes  to  explain  it  by  saying  that  he  made  a 
mistake,  as  he  did  not  have  his  books  of  account  with  him  at 
the  time."  This  had  a  decided  tendency  to  induce  the  jurj^  to 
regard  the  point  as  of  no  conscquem-e.  But  it  is  not  a  small 
matter  for  a  person  who  goes  into  Court  to  swear  to  his  claim, 
to  pay  so  little  regard  to  his  oath  as  to  take  no  pains  to  find 
out  what  is  due.  And  beyond  this,  there  is  nothing  in  the 
plaintiff's  testimony  to  show  any  suih  explanation  given  by 
him  on  oath.     The  error  was  material. 

The  Court  also  refused  to  charge  that  plaintiflTwas  subject 
by  law  to  an  inq)lied  warranty  that  the  bread  was  wholesome, 
and  in  the  charge  stated  the  defendant's  objections  to  apply 
chiefly  to  its  marketable  quality,  and  to  its  being  soiled  ex- 
ternally by  getting  dirty  on  the  floor.     There  was,  however, 


372  ILLUSTRATIVE    CASES 

testimony  from  several  sources   that  the  bread  was  unfit  for 
food,  apart  from  its  external  appearance. 

It  was  held  in  Hoover  v.  Peters,  18  Mich.  51,  that  there  is 
an  implied  warranty  of  wholesomeness  in  the  sale  of  provisions 
for  direct  consumption.  This  question  is  not  discussed  in 
plaintifi"'s  brief,  and  was  left  entirely  out  of  view  by  the  Court, 
and  the  only  reference  to  it  was  in  connection  with  an  express 
contract. 

In  this  case  defendant  was,  as  plaintiff  claims,  in  his  employ 
as  a  peddler,  bound  to  pay  for  his  bread,  at  a  discount,  and  his 
connection  with  the  sales  brings  the  case  within  the  same 
principle.  Defendant  cannot  be  treated  as  a  purchaser  from  a 
wholesale  dealer  of  articles  sold  in  the  market  for  purposes  of 
commerce.  Bread  is  an  article  sold  for  immediate  consump- 
tion, and  never  enters  into  commerce,  and  as  one  of  the  prime 
necessaries  of  life  is  of  no  use  unless  it  is  good  for  food.  De- 
fendant, as  a  mere  middle-man  between  the  baker  and  the  con- 
sumer, and  acting  in  his  employment,  had  a  right  to  expect 
bad  bread  to  be  made  good,  and  the  Court  should  have  so 
held.  Mere  externals  he  could  see  for  himself,  but  bad  quality 
would  not  always  be  detected  without  such  a  minute  examina- 
tion as  the  circumstances  of  such  a  business  would  render  it 
difficult  to  make. 

The  judgment  must  be  reversed,  and  a  new  trial  granted. 

2  Sch.  on  Per.  Prop.,  ?  348  ;  One  case   goes   lo  the  extent  of 

Van  Brakliu  v.  Fanda,  12  Johns,  stating  that  any  purchase  for  do- 

4gg .  mestic   consumption    is   protected  : 

Moses  V.  Mead,  1  Denio,  378  ;  Hoover  v.  Peters,  18  Mich.  51. 

Winsor  r.  Lombard,  18  Pick.  61 ;  As  to  food  for  cattle— French  v. 

Divine  v.  McCormick,  50  Barb.  Vining,  102  Mass.  132  ;  Lukens  v. 

116,  Preiund,  27  Kan.  6G4. 


IN    PERSONALTY — SALES.  373 

B. 
CHATTELS  NOT  SPECIFIED. 

Where  the  chattel  sold  is  not  specified,  but  is  to 
be  manufactured  or  furnished  by  the  seller  for  a 
specific  purpose,  there  is  an  implied  warranty  that 
the   article    shall   be   fit   for    that    purpose. 

a. 
Supplied   by    a   Manufacturer. 

Pease  v.  Sabine. 

Supreme  Court  of  Vermont. 

38  Vt.  432. 

PiERPOiNT,  Ch.  J.  The  questions  presented  by  the  excep- 
tions arise  under  the  first  count  in  the  declaration,  in  which  the 
plaintifi"  declares  upon  a  warranty. 

The  plaintifi:"  requested  the  Court  to  charge  the  jury  that 
"where  produce  requiring  skill  in  the  manufacture  thereof,  as 
in  the  case  of  the  njanulaeture  of  butter  and  cheese,  and  espe- 
cially where  the  same  were  subject  to  latent  defects  that  could 
not  be  discovered  l)y  the  purchaser,  was  sold  by  the  manufac- 
turer thereof,  to  a  dealer  for  a  special  purpose,  then  made 
known  to  the  seller,  and  a  sound  price  was  paid  for  the  article, 
the  law  would  imply  a  warranty  that  the  article  was  fit  for 
such  purpose."  The  Court  declined  so  to  charge  the  jury,  and 
charged  the  reverse.     In  this  we  think  there  was  error. 

The  principle  seems  to  be  now  well  settled  by  the  authori- 
ties, that  when  the  manufacturer  of  an  article  sells  it  for  a  par- 
ticular purpose,  the  purchaser  making  known  to  him  at  the 
time  the  purpose  for  which  he  buys  it,  the  seller  thereby  war- 
rants it  fit  and  proper  for  such  purpose,  and  free  from  latent 
defects.  The  law  therefrom  ini})lie6  a  warranty  of  the  fitness 
of  the  article  f<5r  the  purpose.  Certainly  so,  if  the  unfitness  ot 
'lb 


374  ILLUSTRATIVE   CASES 

the  article  for  the  particular  purpose  is  occasioned  by  any 
want  of  skill  or  care,  or  is  the  result  of  any  defect,  from  nny 
cause,  in  the  process  of  its  manufacture  ;  that  is,  he  warranis 
it  to  he  as  fit  and  suitable  for  the  purpose  indicated  as  any 
good,  sound,  ■well-made  article  of  its  kind  would  bo. 

This  principle  is  fully  discussed  and  decided  in  Jones  v. 
Bright,  5  Bing.  533,  15  Eng.  Com.  Law,  and  in  other  cases  re- 
ferred to  by  counsel  in  the  course  of  the  argument,  and  ^vhic•h 
it  is  not  necessary  to  cite  here. 

In  this  case  the  cheese,  which  is  the  subject  of  controversy, 
was  manufactured  by  the  defendant.  It  was  purchased  by  tbe 
plaintiff  for  the  purpose  of  being  shipped  to  a  foreign  country, 
and  that  purpose  was  made  known  to  the  defendant  at  tlie 
time. 

The  evidence  on  the  part  of  the  plaintiff  tended  to  show, 
that  at  the  time  of  the  sale  of  the  cheese  by  the  defendant, 
many  of  them  were  unsound  and  defective  by  reason  of  their 
being  infested  with  maggots,  of  which  unsoundness  the  plain- 
tiff was  ignorant.  No  question  is  made  but  what  if  this  un- 
soundness existed  in  fact,  it  resulted  from  a  want  of  care  and 
attention  on  the  part  of  the  manufacturer  in  manufacturing, 
and  brino-ing  them  into  a  marketable  condition.  The  evidence 
also  tended  to  show,  that  the  defect,  if  it  existed,  was  a  latent 
one,  as  the  defendant  himself  swore  that  he  was  ignorant  of  it, 
and  that  it  did  not  in  fact  exist.  If  the  defect  existed  and  the 
defendant  was  ignorant  of  it,  it  is  not  probable  that  it  could 
have  been  discovered  without  a  very  critical  examination. 

The  plaintiff's  evidence  also  tended  to  show,  that  this  defect 
rendered  the  cheese  unfit  to  be  sent  to  a  foreign  market,  and  it 
would  seem  to  render  it  equally  unfit  for  any  other  market, 
either  in  the  cities  of  this  country,  or  for  sale  at  home;  but, 
however  that  may  be,  the  evidence  tended  to  show  that  it  was 
unfit  for  the  purpose  for  which  it  was  bought,  and  that  the 
defect  resulted  from  the  fault  of  the  defendant  in  its  manufac- 
ture. Thus  tending  to  show  a  case  clearl}''  within  the  rule 
heretofore  laid  down,  and  entitled  the  plaintiff  to  a  charge  to 
the  jury  substantially  such  as  he  requested. 

Other  questions  have  been  discussed  on  the  hearing,  but  as 


IN   PERSONALTY — SALES.  375 

the  conclusion   to  which  we  have  come  upon  this  point  results 
in  a  reversal  of  the  judgment,  and  a  new  trial,  we  do  not  pass 

upon  them. 

Judgment  reversed  and  case  remanded. 

DARLINGTON,  P.  P.,  83-84  ;  a  al.  v,  Everston,  32  Ind.  .355  ;  Hood 

Rodgers  d  al.  v.  Nilcs  d  al,  11  r.  Bloch,  29  AV.  Va.  244;  Leopold 

Ohio  St.  48;  v.  Van  Kirk   d  «/.,  27  Wis.    152; 

Mcrrian  v.  Field,  24  Wis.  640  ;  Thorns  r.  Dingley,  70  Elaine,  100; 

Brown  v.  Saylcs,  27  Yt.  227  ;  Jones  r.  Bright,  5  Bing.  533, 15  Eng. 

Harris  v.  Waite,  51  Id.  480 ;  Com.  Law. 

Macfarlane  v.  Taylor,  L.  R.,  1  S.        But  see  Co?grove  i'.  Bennett,  32 

&  D.  App.  245,  Minn.  371  ;  Goulds  d  al  v.  Brophy, 

See    Curtis    MTg    Company    r.  42  Id.  100. 
Williams,  3  S.  W.  Rep.  517;  Mann 


b. 
Supplied    by    others    than    Manufacturers. 

Shaw  et  al.  v.  SxMITH  et  al. 

25  Pac.  Rep.  886.  ^  '^  ''  ■•  ■       ''■},'^ 

) 

Valentine,  J.  This  was  an  action  brought  before  a  justice 
of  the  peace  of  Cowley  County  on  January  31,  1887,  by  G.  B. 
Shaw  &  Co.  against  Yates  Sn)ith  and  James  W.  McClellen,  for 
the  recovery  of  $12  and  interest,  upon  the  following  instru- 
ment in  writing,  to  wit: — 

"Cambridge,  April  30,  1886. 

"On  or  before  the  first  day  of  October,  1886,  we  promise  to  pay 
to  the  order  of  G.  B.  Shaw  k  Co.,  at  their  office  in  Cambridge, 
twelve  dollars,  for  value  received,  with  interest  after  maturity, 
at  the  rate  of  ten  per  cent,  per  annum  until  paid.  This  note  is 
given  in  part  consideration  of  the  sale  to  Y.  Smith  of  eight 
bushels  flaxseed,  by  said  G.  B.  Shaw  &  Co. ;  and,  as  a  further 
consideration  therefor,  we  agree  to  plant  14  acres  with  said  seed, 
to  cultivate,  harvest,  and  clean  the  same  in  proper  and  careful 
maimer,  and  deliver  to  G.  B.  Shaw  k  Co.  at  Cambridge,  Kansas, 
on  or  before  the  1st  day  of  December,  1886,  the  whole  crop 
raised  therefrom,  at  a  price  mentioned  below  per  bushel  of  56 
pounds,  for  pure  and  prime  flaxseed  ;  flaxseed  not  pure  and 


376  ILLUSTRATIVE   CASES 

prime  to  be  inspected  and  graded  subject  to  the  rules  of  the  St. 
Louis  Merchants'  Exchange.  And  should  we  sell  or  trade,  or 
attempt  to  offer  to  sell  or  trade,  such  crop  to  any  other  person 
or  persons  than  said  G.  B.  Shaw  &  Co.,  or  order,  then  the  note 
hereto  attached  shall  immediately  become  due  and  payable; 
and  the  said  G.  B.  Shaw  &  Co.,  or  their  assigns,  are  hereby 
authorized  to  enter  any  building  or  premises  without  any  legal 
process  whatever,  and  seize  and  remove  such  crop  whatsoever 
(and  in  whosesoever  possession)  the  same  may  be  found,  and  to 
pay  me  balance  on  demand,  after  the  amount  due  upon  said 
note  has  been  deducted,  together  with  all  costs  and  expense  in- 
curred, where  seizure  is  necessary ;  price  to  be  paid  per  bushel, 
on  basis  of  pure,  to  be  35  cents  less  than  St.  Louis  market  price 
on  day  of  delivery. 

"  Yates  Smith,  James  W.  McClellen." 
Afterwards  the  case  was  taken  on  appeal  to  the  District  Court, 
where  the  case  was  tried  before  the  Court  and  a  jury,  with  the 
result  hereafter  stated.  The  plaintiffs'  bill  of  particulars  simply 
set  up  the  foregoing  instrument,  and  asked  judgment  thereon 
for  $12,  and  interest  at  the  rate  of  10  per  cent,  per  annum  from 
October  1,  1886.  The  defendants'  amended  answer  thereto 
and  cross-petition  alleged  that  the  flaxseed  for  which  the 
instrument  sued  on  was  given  was  purchased  by  Smith,  for  the 
purpose  of  sowing  it  and  raising  a  crop ;  that  it  was  warranted 
by  the  plaintiffs  to  be  good,  but  that  it  was  worthless;  that  he 
(Smith)  sowed  it,  but  that  it  did  not  germinate;  and  that  he 
lost  his  time,  labor,  and  use  of  his  ground  ;  and  that  he  was 
damaged  thereby  in  the  sum  of  $150.  And  he  asked  judgment 
lor  that  amount  and  costs  of  suit.  The  trial  resulted  in  a  ver- 
dict in  favor  of  the  defendants  and  against  the  plaintiffs  for  the 
sum  of  $90,  and  judgment  was  rendered  accordingly;  and  the 
plaintiffs,  as  plaintiffs  in  error,  bring  the  case  to  this  Court  for 
review. 

It  appears  from  the  evidence  that  the  facts  of  the  case  are 
substantially  as  follows:  The  plaintiffs,  G.  B.  Shaw  &  Co., 
were  dealers  in  flaxseed  at  Cambridge,  in  said  Cowley  County. 
Smith  went  to  their  place  of  business  about  April  20,  1886,  and 
found  Joseph  Fraley,  their  agent,  in  charge.  Shaw  &  Co.  did 
not  have  any  flaxseed  on  hand,  but  they  were  about  to  order 


IN    PERSONALTY — SALES.  377 

some.  Smith  told  Fraley  to  order  eight  hu?hels  for  him,  I'or 
the  purpose  of  sowing  it  and  raisitig  a  crop.  Fraley  told  ^uiith 
that  they  would  furnish  the  flaxseed  upon  the  conditions  sub- 
stantially as  set  forth  in  the  foregoing  instrument.  Afterwa.ds 
the  flaxseed  arrived,  and  Fraley  gave  notice  to  Smith.  Smitii 
then,  on  April  30,  1886,  went  to  Cambridge  and  received  the 
seed,  about  eight  bushels  in  amount,  inclosed  in  sacks,  from 
Fraley,  and  took  it  home  and  sowed  it  upon  about  12  acres  of 
ground.  The  seed  ajipeared  to  be  good,  and  Fraley  and  Srniih 
believed  it  to  be  good,  but  in  fact  it  was  not  good,  and  it  did 
not  germinate;  and  Smith  lost  all  his  time  and  labor  in  i»ro- 
curing  it,  and  in  preparing  the  ground  for  sowing  it,  and  in 
sowing  it,  and  he  got  no  crop,  and  lost  the  use  of  his  ground. 
And  upon  these  facts  the  jury  found  in  favor  of  defendants 
and  against  the  plaintiffs,  and  assessed  the  defendants'  damages 
at  $90,  as  aforesaid.  The  oidy  questions  now  involved  in  the 
case  are  as  follows:  (1)  Under  the  contract  between  the  parties, 
and  under  the  circumstances  of  the  case,  was  there  any  such 
implied  warranty  on  the  part  of  Shaw  &  Co.,  respecting  the 
sufHciency  of  the  flaxseed  for  the  purpose  of  sowiug  it  and 
raising  a  crop,  that  the  plaintifl^s  may  be  defeated  in  their 
action  on  the  aforesaid  written  instrument?  (2)  If  so,  then 
under  such  contract  and  warranty  and  circumstances,  may  the 
defendants,  Smith  and  McClellen,  or  rather  Smith,  recover 
damages  for  Smith's  losses,  necessarily  occasioned  by  reason  of 
tlie  worthlessness  of  the  flaxseed?  (3)  And,  if  so,  then  what 
is  the  measure  of  Smith's  damages?  The  maxim  of  the  com- 
mon law,  caveat  emptor^  is  the  general  rule  applicable  to  pur- 
chasers and  sales  of  personal  property'  so  far  as  the  quality  of 
the  property  is  concerned  ;  and,  under  such  maxim,  the  buyer, 
in  the  absence  of  fraud,  purchases  at  his  own  risk,  unless  the 
seller  gives  him  an  express  warranty,  or  unless,  from  the 
circumstances  of  the  sale,  a  warranty  may  be  implied.  In  the 
present  case  no  express  warranty  was  given,  and  the  question 
then  arises,  was  there  any  implied  warranty?  At  the  time 
when  the  contract  for  the  purchase  and  sale  of  the  flaxseed  was 
entered  into,  such  seed  was  not  present  so  that  it  could  be  in- 
spected by  the  purchaser,  and  when  it  arrived  and  was  de- 
livered to  him  the  defect  in  the  seed  was  not  apparent,  aiid 


378  ILLUSTRATIVE   CASES 

was  probably  not  discoverable  by  any  ordinary  means  of  in- 
spection, and  it  was  not  discovered  nntil  after  it  was  sowed, 
and  when  it  failed  to  germinate.  When  the  original  contract 
for  the  purchase  and  sale  of  the  flaxseed  was  made,  the  flax- 
seed was  purchased  and  sold  for  the  particular  purpose,  known 
to  both  the  buyer  and  the  seller,  of  sowing  it  in  a  field,  and  of 
raising  a  crop  from  it ;  and  therefore  this  purpose  was  a  part 
of  the  contract,  and  demanded  that  the  seed  should  be  suflicient 
for  such  purpose.  It,  in  eftect,  constituted  a  warranty  on  the 
part  of  the  seller  that  the  seed  should  be  the  kind  of  seed  had 
in  contemplation  by  both  the  parties  when  the  contract  was 
made.  The  purchaser  had  to  rely  upon  the  seller's  furnishing 
to  him  the  kind  of  seed  agreed  upon,  and  the  seller,  in  eflect, 
agreed  that  the  seed  furnished  should  be  the  kind  of  seed 
agreed  upon.  The  entire  contract  when  made  was  executory, 
and  it  w^as  to  be  executed  and  performed  afterwards,  and  to 
be  performed  in  parts  and  at  dift'erent  times.  The  seller  was 
first  to  furnish  the  seed,  and  he  did  so  in  about  ten  days  after 
the  contract  was  made,  and  of  course  the  seed  was  to  be  a  kind 
of  seed  that  would  grow.  The  purchaser  was  afterwards  to 
sow  it  and  to  raise  a  crop,  and  afterwards  the  purchaser  was  to 
sell,  and  the  seller  was  to  buy  the  crop  upon  certain  terms  and 
conditions  expressed  in  the  contract.  We  think  there  was  an 
implied  warranty  on  the  part  of  the  seller  that  the  seed  should 
be  sufficient  for  the  purpose  for  which  it  was  bought  and  sold: 
Wolcott  V.  Mount,  36  K  J.  Law,  262;  38  Id.  496;  Van 
Wyck  V.  Allen,  69  N.  Y.  61  ;  White  v.  Miller,  7  Hun,  427; 
71  K  Y.  118  ;  Whitaker  v.  McCorraick,  6  Mo.  App.  114.  We 
also  think  that  the  purchaser  may  recover  damages  from  the 
seller  for  all  the  losses  necessarily  sustained  by  the  purchaser 
by  reason  of  the  worthlessness  of  the  flaxseed  furnished  by  the 
seller.  See  the  authorities  above  cited,  and  also  the  following: 
Passenger  v.  Thorburn,  34  K  Y.  634 ;  Flick  v.  Wetherbee,  20 
Wis.  392 ;  Ferris  v.  Comstock,  33  Conn.  513  ;  Randall  v.  Raper, 
El.,  Bl.  &  El.  84.  And  it  is  not  claimed  that  the  purchaser  in 
the  present  case  recovered  for  more  than  the  foregoing  losses. 
The  claim  is  that  the  purchaser  had  no  right  to  recover  at  all, 
and  that  the  seller  had  the  right  to  recover  on  the  instrument 


IN    PERSONALTY — SALES.  379 

sued  on.  Xo  other  questions  are  presented.  We  think  no 
material  error  was  committed  in  the  case,  and  the  judgment  of 
the  Court  below  will  be  affirmed.     All  the  justices  concurring. 

Shatlo  V.  Aberiieth}',  35  Minn.        Murchie  v.  Cornell,  loo  Mass.  60. 
538; 


C. 

Implied    warranty    as     to    merchantable    quality    of 
chattels. 

Babcock  v.  Trice. 

Supreme  Court  of  Illinois,  1857. 

18  111.  420. 

Skinner,  J.  Trice  sued  Babcock  and  declared  in  indebitatus 
assumpsit  for  corn  sold  and  delivered.  Babcock  pleaded  the 
general  issue  and  a  special  plea  of  set-off,  for  money  had  and 
received,  etc.  Babcock  proved  a  special  contract  for  the  sale 
and  the  delivery  of  the  corn,  at  a  warehouse  upon  a  railroad, 
in  sacks,  at  fifty  cents  per  bushel  ;  and  proved  that  some  of 
the  corn,  when  delivered  at  the  warehouse,  was  in  a  damaged 
condition  and  of  less  value  than  sound  merchantable  corn. 
The  corn  was  delivered  through  a  warehouseman,  and  it  did 
not  appear  that  Babcock  had  seen  or  knew  the  condition  of  the 
corn  when  delivered.  The  Court,  on  the  part  of  Trice,  in- 
structed the  jury  as  follows : — 

"  AVhen  the  plaintiff"  delivered  the  corn  at  the  depot  in  Cam- 
eron, to  any  person  authoiized  by  the  defendant  to  receive  the 
same,  and  the  same  was  accepted  by  such  person,  then  such 
delivery  and  acceptance  is  the  same  as  a  delivery  and  accept- 
ance to  and  by  the  defendant  himself;  and  although  the  jury 
may  believe,  from  the  evidence,  that  a  part  of  the  corn  waa 
damaged,  yet,  if  they  further  believe  tliat  such  injured  corn 
was  accepted  by  the  defendant,  or  his  agent,  under  the  contract, 
then  the  defendant  has  waived  his  right  to  object  to  the  pay- 
ment for  the  corn  because  of  the  bad  quality." 


380  ILLUSTRATIVE   CASES 

This  instruction  is  not  the  law.  Under  this  contract  the  law- 
will  imply  that  the  parties  contemplated  that  the  corn  should 
be  of  a  fair  and  merchavtable  quality^  and  will  raise  a  warranty 
to  that  eflect:  Misner  v.  Granger,  4  Gilm.  R.  G9 ;  Chitty  on 
Cont.  392,  393  ;  Parsons  on  Cont.  465,  466.  The  contract  was 
executory,  the  corn  was  not  purchased  upon  inspection,  and  the 
duty  of  Trice  was  to  deliver  a  fair  article,  fit  for  use  and  market 
as  a  sound  commodity  ;  and  his  duty  under  the  contract  was 
not  performed  until  he  had  done  so. 

The  acceptance  of  the  corn  by  the  warehouseman  was  not  a 
waiver  of  the  implied  warranty,  nor  would  a  delivery  of  the 
corn  to  Babcock  personally  at  the  warehouse  have  precluded 
him  from  setting  up  in  defence  of  an  action  for  the  price,  a 
breach  of  warranty  as  to  its  quality. 

He  was  not  bound  to  refuse  to  receive  the  corn  because  some 
portion  of  it  was  damaged,  nor  was  he  bound  to  return  it  on 
discovery  of  the  fact.  He  might  rely  upon  the  warranty: 
Chitty  on  Cont.  401 ;  Mondell  ?;.^ Steel,  8  M.  and  Welsby,  858 ; 
2  Smith's  Leading  Cases,  20,  21  and  22. 

It  is  true  that  the  acceptance  of  corn  under  an  executory 
contract,  with  opportunity  of  inspection  at  the  time  of  delivery, 
without  complaint^  may  raise  a  presumption  that  it  was  of  the 
quality  contemplated  by  the  parties ;  but  it  will  not  preclude 
the  party  from  showing  and  setting  up  the  actual  defect  in 
quality  and  condition.  Babcock  might,  in  his  plea  of  set-off, 
have  set  up  the  special  contract  and  breach  of  the  warranty; 
and,  if  he  had  done  so,  and  it  appeared  that  his  damages 
exceeded  the  amount  unpaid  on  the  purchase  of  the  corn,  he 
could  have  recovered  the  difference  under  his  plea.  But  his 
plea  gave  no  notice  that  he  relied  upon  the  warranty  to  recover 
his  damages  by  way  of  set-off,  in  the  nature  of  a  cross-action. 
He  could,  however,  under  the  general  issue,  prove  the  facts  out 
of  which  the  warranty  arose,  the  breach  and  his  damages,  by 
way  of  recovpment ;  and,  if  the  evidence  justified  it,  defeat 
Trice's  demand  in  part  or  in  whole,  but  he  could  not  recover 
any  excess  of  damages  over  the  damages  proved  by  Trice,  the 
plaintiff:  Stow  v.  Yarwood,  14  111.  R.  424;  Bosten  v.  Butter, 
7  East,  479 ;  Poulton  v.  Lattimore,  9  Br.  C.  259  ;  Farnsworth 
V.  Garrard,  1  Camp.  R.  38. 


IN   PERSONALTY — SALES.  381 

This  disposes  of  the  questions  necessarily  involved  in  the 
record. 

Judgment  reversed  and  cause  remanded. 
Judgment  reversed. 

Merriam  v.  Field,  24  Wis.  040 ;  Weiger  r.  Gould,  W,  111.  180  ; 

McCIung  r.  Kelley,  21  Iowa,  008;        Howard  v.  llouy,  2'6  Weud,  350. 


d. 

As   to    Quality    of    Goods    sold   "  by    Sample." 

Hanson  et  al.  v.  Busse. 

Supreme  Court  of  Illinois,  18G7. 

45  111.  490. 

Mr.  Justice  Lawrence  delivered  the  opinion  of  the  Court. 

This  was  an  action,  brought  by  Hanson  and  Barrett,  against 
Busse,  to  recover  the  price  of  one  hundred  and  ten  barrels  of 
apples,  sold  by  them  to  Busse.  The  demand  was  resisted,  on 
the  ground  that  the  apples,  when  opened,  proved  to  be  decayed 
and  entirely  worthless.  The  jury  found  for  the  defendant  and 
the  plain tifts  appealed. 

The  Court  gave  for  the  defendant  a  series  of  instructions, 
nearly  all  of  which  embody  the  idea  that  if  the  plaintiffs 
represented  the  apples  to  be  good,  and  the  defendant  bought 
them,  relying  upon  such  representations,  and  they  were  bad 
and  unmerchantable,  and  the  defendant  offered,  at  once,  to 
return  them,  he  would  not  be  liable  for  the  price. 

In  reference  to  the  sale  of  personal  property,  which  is  open 
to  the  inspection  and  examination  of  the  purchaser,  this  would 
not  be  the  law.  In  such  cases  it  is  immaterial  how  far  the  pur- 
chaser may  rely  upon  the  representations  of  the  vendor  as  to 
the  quality  of  the  goods,  if  there  was  no  intention  on  the  part 
of  the  vendor  to  warrant,  and  if  he  used  no  language  fairly  im- 
plying such  an  intent.  The  different  rule  of  the  civil  law  may 
be  founded  on  higher  morals,  and  the  modern  decisions,  both  in 
England  and  this  country,  seem  to  be  tending  in  that  direction. 
This  tendency  is  shown  in  the  recognition  of  exceptions  to  the 


382  ILLUSTRATIVE    CASES 

rule.  But  the  rule  itself  must  be  considered  firmly  settled  in 
the  common  law,  that  the  vendor  of  goods  which  the  purchaser 
has,  at  the  time  of  purchase,  the  opportunity  of  examining,  is 
not  responsible  for  delects  of  quality,  in  the  absence  of  fraud 
and  warranty  ;  and  although  no  particular  form  of  words  is 
requisite  to  constitute  a  warranty,  yet  a  simple  commendation 
of  the  goods,  or  a  representation  that  they  are  of  a  certain 
quality  does  not  make  a  warranty,  unless  the  language  of  the 
vendor,  taken  in  connection  with  the  circumstances  of  the  sale, 
fairly  implies  an  intention,  on  his  part,  to  be  understood  as 
warranting.  The  rule  has  been  thus  laid  down  by  this  Court 
in  several  cases:  Towell  v.  Gatewood,  2  Scam.  22;  Adams  v. 
Johnson,  15  111.  345,  and  Kohl  v.  Linder,  39  Id.  195.  In  the 
last  case  the  rule  is  fully  considered. 

But,  although  these  instructions  would  be  erroneous  if 
applied  to  ordinary  sales  of  personal  property  open  to  inspec- 
tion, yet  they  must  be  considered  in  reference  to  their  applica- 
tion to  this  particular  case,  and,  tried  by  that  standard,  we  can- 
not say  they  mislead  the  jury.  As  stated  by  this  Court  in 
Kohl  V.  Linder,  above  quoted,  one  of  the  exceptions  to  the 
general  rule  is,  where  the  sale  is  made  by  saniple,  and  another, 
where  the  purchaser  has  no  opi>ortunity  for  inspection.  The 
bulk  must  be  as  good  as  the  sani^ile,  and,  if  there  is  no  oppor- 
tunity for  examination,  the  article  sold  must  be  what  the 
vendor  represents  it  to  be.  In  such  cases  the  maxim  caveat 
emptor  can  have  no  application. 

In  the  case  before  us  the  proof  shows  that  the  110  barrels 
were  piled  up  in  tiers  at  a  railway  depot  in  Chicago.  The 
purchaser  went  with  the  clerk  of  the  plaintiffs  to  look  at  them. 
They  opened  a  couple  of  barrels  that  stood  on  the  floor.  The 
purchaser  was  lame  froni  rheumatism,  and  requested  the  clerk 
to  climb  up  and  open  a  barrel  on  the  top  of  the  tiers.  He  did 
so,  and  showed  the  purchaser  some  apples  which  were  in  good 
condition,  and  said  they  were  all  like  that.  The  plaintifis  had 
told  the  defendant  the  apples  were  just  such  as  he  had  pre- 
viously bought,  shipped  by  the  same  man,  and  good  hand- 
picked  fruit.  The  apples  in  the  three  barrels  exhibited  as 
samples  were  unquestionably  merchantable,  or  the  defendant 
would  not  have  bought.     It  would  be  unreasonable  to  require 


IN    PERSONALTY — SALES.  383 

tliat  lie  should  have  opoiicd  every  one  of  the  110  barrels.  lie 
had  the  right  to  rely  on  the  samjiles  shown  to  him,  and  on  the 
representations  of  the  plaintilfs  that  the  apples  were  j^ood. 
He  had  no  opportunity  for  the  exereise  of  his  own  judgment, 
and  the  plaintifls  must  have  known  that  he  bought  lelying 
upon  their  representations.  The  case  falls  clearly  within  the 
exceptions  to  the  general  rule  above  mentioned,  and  there  is 
no  ground  for  saying  caveat  emptor.  The  verdict  was  just,  and 
the  instructions  as  applied  to  the  facts  of  this  case  could  not 
have  misled  the  jury. 

The  plaintiffs'  instructions  were  properly  refused,  because 
inai)pli'jable  to  the  facts  of  this  case.  They  would  have 
tended  to  mislead  the  jury. 

The  judgment  must  be  affirmed. 

Judgment  affirnjcd. 

DARLINGTON,  P.  P.,  84  ;  Laing  r.  Fidgeon,  G  Taunt.  108. 

Frali-y  v.  Bisplmm,  10  Pn.  St.  320  ;  Warranty  as  to  kinrl,  but  not  as 

Boothby  r.  Plaisted,  51  N.  II.  436 ;  to  quality— Boyd  v.  AVilson,  83  Pa. 

Bradford  v.  Manly,  13  Mass.  139  ;  St.  319. 
Gould  V.  Stein,  149  Mass,  570  ; 


Implied  ■warranty  as  to  Kind  or  Species  of  chattel 
ordered   or    described. 

WoLCOTT,  Johnson  &  Co.  v.  Mount. 

Court  of  Errors  and  Ajipeals,  Xcw  Jersey,  1875. 

38  N.  J.  Law,  496. 

Beasley,  Chief  Justnce.  The  jtlaintiffs  in  error  sold  to  the 
defendant  in  error  certain  seed  as  and  ior  "  early  strap-leaf  red- 
top  turnip  seed."  The  seed,  being  planted,  turned  out  to  be  of 
a  dift'erent  kind,  so  that  the  dei'endant  lost  his  crop.  It  Avas 
shown  in  the  case  that  the  plaintifls  in  error  believed,  at  the 
time  of  the  sale,  that  the  seed  was  of  the  kind  which  the  <lefen- 
dant  sought  to  purchase.  The  defendant  in  error  brought  his 
suit  before  a  justice,  on  the  ground  that  the  sale  to  him,  under 


384  ILLUSTRATIVE    CASES 

these  conditions,  comprised  a  warranty.  The  decision  was  in 
his  favor,  and  such  judgment  was  affirmed  in  the  Common 
Pleas,  and,  on  certiorari,  in  the  Suprenje  Court. 

Therefore,  the  point  before  this  Court  now  is,  whether,  on  the 
facts  stated,  the  Court  of  Common  Picas  could  lawfully  infer 
that  the  plaintilTs  in  error  warranted  the  article  sold  to  be  of 
the  particular  kind  for  which  it  was  purchased. 

The  subject  of  warranty,  in  its  application  to  the  class  of 
cases  in  which  the  present  one  is  comprehended,  has  been  in- 
volved in  much  confusion.  The  authorities  are  not  consistent, 
and  they  are  very  numerous.  It  has  always  seemed  to  me  that 
a  considerable  part  of  this  contrariety  has  arisen  from  a  mis- 
apprehension with  respect  to  what  was  decided  in  the  famous 
case  of  Chandler  v.  Lopus,  Cro.  Jac.  4.  The  only  question  in 
that  case,  as  I  understand  it,  was  as  to  the  sufficiency  of  the 
averments  in  the  declaration.  The  plaintiff's  case  appearing 
upon  the  record,  is  stated  in  the  report  in  these  words,  viz. : 
"Whereas,  the  defendant  being  a  goldsmith,  and  having  skill 
in  jewels  and  precious  stones,  had  a  stone  which  ho  affirmed  to 
Lopus  to  be  a  bezoar  stone,  and  sold  it  to  him  for  a  hundred 
pounds  ;  ubi  revera,  it  was  not  a  bezoar  stone."  The  contention 
in  the  Court  of  Error,  upon  this  record,  was  that  enough  did 
not  here  appear  to  charge  the  defendant,  because  it  was  shown 
neither  that  he  warranted  it  to  be  a  bezoar  stone,  nor  knew  it 
to  be  not  such.  Instead  of  a  warranty  being  expressly  laid  in 
the  declaration,  a  mere  affirmation  as  to  the  kind  of  article  sold 
was  laid,  and  it  was  this  form  of  pleading  which  was  adjudged 
to  he  bad.  Now,  an  affirmation  of  this  kind  may  or  may  not 
be  a  warranty,  according  to  circumstances,  and  the  fault  of  the 
pleading,  therefore,  was  that  instead  of  a  warranty  it  set  forth 
inconclusive  evidence  of  a  warranty.  The  pleader  was  bound 
to  state  the  transaction  according  to  its  legal  effect,  and  this 
was  all  that  was  decided.  And  such  a  form  of  statement,  at 
the  present  day,  would,  I  think,  be  deemed  ill. 

But  this  decision  has  been  many  times  cited,  not  as  an  illus- 
tration of  the  rule  of  pleading,  but  as  an  example  of  the  in- 
sufficiency of  the  affirmation  specified  in  the  case  to  prove  a 
contract  of  warranty ;  and  this,  in  my  opinion,  is  an  evident 
misuse  of  the  precedent,  which  has  been  introduetive  of  con- 


IN    I'tRSONALTY — SALES.  385 

fusion.  It  was  such  abuse  that  resulted  in  tlie  judgment  in 
Seixus  V.  Woods,  2  Caines'  R.  48,  uhicli  asserted  that  a  war- 
ranty would  not  arise  from  a  description  of  the  kind  of  the 
article  sold.  Tiiis  decision  was  followed  by  several  others  in 
a  similar  vein  ;  but  the  ground  uj)on  wliich  this  line  of  cases 
rested,  after  being  much  criticised  and  discredited,  has  been 
formally  repudiated  by  the  Court  of  Appeals  of  Kew  York  in 
Hawkins  v.  Pemberton,  51  X.  Y.  198. 

The  tendency  of  recent  adjudications  has  been,  I  think,  to 
put  this  subject  on  a  reasonable  footing.  Starting  from  the 
aduiission  that,  in  the  absence  of  fraud  and  of  a  warranty,  the 
rule  of  mvcat  emptor  applies,  the  eftbrt  is,  not  to  elevate  par- 
ticular expressions  contained  in  a  given  contract  into  a  general 
rule  of  law,  but  to  regard  each  case  in  the  light  of  its  own  cir- 
cumstances, and  with  resjiect  solely  to  the  understanding  of  the 
parties.  Whether  the  representation  or  affirmation  accompany- 
ing a  sale  shall  be  regarded  as  a  warranty  or  as  smplex  com- 
mendation is  a  question  to  be  solved  by  a  search  for  the  inten- 
tion of  the  contracting  parties.  The  two  cases  of  Jendwine  v. 
Slade,  2  Espinasse,  572 ;  and  Power  v.  Barham,  4  A.  &  E. 
473,  31  Eng.  Com.  Law,  115,  are  conspicuous  examples  of  this 
rule.  In  the  former  there  was  a  sale  shown  of  two  pictures, 
the  catalogue  of  the  auction  describing  one  as  a  sea  piece,  by 
Claude  Lorraine;  and  the  other, a  fair, by  Tcniers.  Thisdescrip- 
,  tion  was  held  by  Lord  Kenyon  to  be  no  warranty  that  the 
pictures  were  the  genuine  works  of  the  artists  referred  to,  but 
merely  an  exjiression  of  the  ojiinion  of  the  vendor  to  that  efiect. 
In  the  other  case,  it  appeared  that,  at  a  sale  of  four  pictures, 
they  were  described  as  "ibur  pictures,  views  in  Venice — Cana- 
letto,"  and  it  was  left  to  the  jury  to  decide  whether  the  inten- 
tit)n  was  to  warrant  the  pictures  as  authentic,  the  Court  distin- 
guishing this  case  from  the  lormer  one  by  the  circumstance 
that  Canaletto  was  comparatively  a  modern  painter,  the  authen- 
ticity of  whose  works  was  cjijiablc  of  being  known  as  afact, 
while,  with  respect  to  the  productions  of  very  old  painters,  an 
assertion  as  to  their  genuineness  was  necessarily  a  matter  of 
opinion.  In  these  instances  the  respective  affirmati(Mis  of  the 
vendor  wore  of  equivalent  import,  intrinsiciilly  considered; 
but   it  was   left  open,  as  a  matter  of  inference,  whether  they 


386  ILLUSTRATIVE    CASES 

were  to  have  the  same  signification  Avhen  used  under  variant 
circumstances.  The  question  consequently  is,  in  every  case  of 
this  kind,  whether  the  conditions  were  such  that  the  vendee 
had  the  right  to  understand,  and  did  so  understand,  that  an 
affirmation  or  representation  made  by  the  vendor  was  meant  as 
a  warranty. 

And  for  the  determination  of  this  question,  Mr.  Benjamin, 
in  his  admirable  Treatise  on  Sales,  page  499,  says:  "A  decisive 
test  is  whether  the  vendor  assumes  to  assert  a/«f^  of  which  the 
buyer  is  ignorant,  or  merely  states  an  opinion  or  judgment  upon 
a  matter  of  which  the  vendor  has  no  special  knowledge,  and  on 
which  the  buyer  may  be  expected  also  to  have  an  opinion,  and 
to  exercise  his  judgment.  In  the  former  case  there  is  a  war- 
ranty ;  in  the  hitter,  not." 

This  criterion  is  the  product  of  the  learned  author's  study  of 
the  English  decisions,  and  it  appears  to  me  to  be  the  most  satis- 
factorj^  one  which  can  be  adopted.  It  is  exemplified  in  a  vast 
number  of  cases,  many  of  which  are  collected  in  the  treatise 
just  referred  to,  and  in  the  voluminous  notes  upon  the  case  of 
Chandler  v.  Lopus,  1  Smith's  Lead  Cas.  238.  It  does  not  seem 
to  me  expedient  further  to  refer,  on  this  point,  to  the  books, 
contenting  myself  with  the  single  observation  that  the  before- 
cited  case  of  Hawkins  v.  Pemberton,  51  K.  Y.  198,  is  in  all 
respects  applicable  to  the  facts  now  present. 

Resorting,  then,  to  the  principle  and  test  just  propounded, 
it  is  manifest  that  the  judgment  of  the  Supreme  Court  cannot 
be  disturbed.  The  Court  of  Common  Pleas,  in  weighing  the 
evidence,  had  a  right  to  infer  that  a  warranty  of  the  character 
of  the  article  sold  was  within  the  understanding  of  the  con- 
tracting parties.  The  seller  in  this  case  asserted,  at  the  time 
of  the  sale,  that  the  seed  was  of  the  species  which  the  vendee 
was  in  search  of.  When  he  made  this  express  assertion,  he 
was  aware  that  the  vendee  could  have  no  opinion  for  himself 
on  the  subject,  for  the  case  states  that  the  seed  could  not  be 
distinguished  by  sight  or  touch.  The  vendee  also  knew  that 
the  vendor  could  not  be  stating  the  result  of  his  own  observa- 
tion. The  facts  do  not  admit  of  the  imperative  inference  that 
the  assertion  of  the  vendor  was  mere  commendation  of  his 
goods,  or  even  that  it  was  the  utterance  of  his   view  as  an 


IN  PERSON  A  LTY — SALES.  387 

expert.  If  the  seller  had  stated  the  exact  truth,  he  would 
have  said  that  he  had  hought  the  seed  as  seed  of  the  specified 
kind,  hut  that  lie  did  not  know  whether  it  was  so  or  not. 
Instead  of  doing  this,  he  made  the  positive  assertion  in  ques- 
tion. From  such  an  assertion,  under  the  circumstance^  in  evi- 
dence, I  think  the  Court,  although  it  was  not  bound  so  to  do, 
had  the  right  to  infer  that  there  was  a  warrant}-. 

The  second  question  raised  in  the  cause  respects  the  measure 
of  damages.  The  rule  applied  in  the  Court  below  made  the 
plaintiff  whole,  as  he  was  allowed  to  recover  the  difference  be- 
tween the  value  of  the  crop  produced  and  the  crop  which  would 
have  been  jtroduced  if  the  seed  had  been  answerable  to  the 
warranty.  This  embraces  [irofits,  and  the  contention  was, 
that  profits  arc  too  remote  and  uncertain  to  constitute  an  in- 
gredient in  the  recompense  which  the  law  gives  on  a  breach  of 
contract. 

But  this  argument  comprises  a  latitudinarian  and  incorrect 
statement  of  the  legal  rule.  Profits  sometimes  are  not,  in  a 
le<^1l  {loint  of  view,  either  remote  or  uncertain.  Where  the 
situation  of  the  parties  is  such  that,  supposing  their  attention 
to  have  been  directed  to  the  contingency,  they  must  have  per- 
ceived, at  the  time  of  the  making  of  the  contract,  that  its 
breach  would  probably  result  in  the  loss  of  definite  profits, 
such  profits  being  of  an  ascertainable  nature,  the  compensation 
which  the  law  affords  to  the  injured  party  will  embrace  these 
profits.  The  leading  case  on  this  subject,  and  one  which  was 
approved  of  in  this  Court  in  Binninger  v.  Crater,  -i  Vroom,  513, 
is  that  of  Had  ley  v.  Baxendale,  0  Exchq.  R.  341.  The  action 
was  for  the  non-performance  of  a  contract,  and  the  rule  is  thus 
defined  by  the  Court :  "  We  think  the  proper  rule  in  such  ii 
case  as  the  present  is  this:  where  two  parties  have  made  aeon- 
tract  which  one  of  them  has  broken,  the  damages  which  the 
other  party  ought  to  receive  in  respect  to  such  breach  of  con- 
tract should  be  either  such  as  may  fairly  and  substantially  be 
considered  as  arising  naturally — /.  c,  according  to  the  usual 
course  of  things — from  such  breach  of  contract  itself,  or  such 
as  may  reasonably  be  su[)posed  to  have  been  in  the  contempla- 
tion of  i)oth  parties  at  the  time  they  made  the  contract,  as  the 
probable  result  of  the    breach  of  it.     Xow,  if  the  special  cir- 


d»»  ILLUSTRATIVE    CASES 

cumstances  under  which  the  contract  was  actually  made  were 
communicated  l)y  the  plaintift'  to  the  defendant,  and  thus 
known  to  both  parties,  the  damages  resulting  from  the  lireach 
of  such  contract,  which  they  would  reasonably  contemplate, 
would  be  the  amount  of  injury  which  would  ordinarily  follow 
from  a  breach  of  contract  under  these  s])ecial  circumstances  so 
known  and  communicated." 

The  rule  thus  stated  has  been  approved  of  and  followed  in  a 
numerous  series  of  decisions  by  both  the  English  and  American 
Courts,  as  is  abundantly  shown  by  Mr.  Sedgwick  in  his  valuable 
work  on  Damages,  page  79  (sixth  edition). 

The  present  case  falls  clearly  within  the  scope  of  this  princi- 
ple. The  defendant  at  the  time  of  the  sale  was  possessed  of  all 
the  facts — he  knew  the  business  of  the  plaintiff,  and  the  use 
to  be  made  of  the  thing  sold.  He  was  in  a  situation  to  foresee, 
with  entire  certainty,  the  loss  that  would  fall  upon  the  plaintiff" 
if  the  warranty  should  be  broken.  Nor  are  the  gains  which 
have  been  lost  subject  to  any  uncertainty.  The  seed  sold  was 
planted  and  came  to  maturity  ;  the  seed  stipulated  for  would 
have  done  the  same,  only  the  value  of  the  product  would  have 
been,  to  a  definite  amount,  greater.  In  such  an  injury  there 
is  nothing  speculative  or  contingent.  There  are  a  number  of 
authorities  which  sanction  the  recovery  of  profits  of  a  much 
more  uncertain  character  than  these:  Davis  v.  Talcot,  14  Barb. 
611;  Griffin  v.  Colver,  16  N.  Y.  489;  Borries  v.  Hutchinson, 
18  C.  B.  (K  S.)  445,  114  Eng.  Com.  Law  ;  Messraore  v.  N.  Y. 
Shot  and  Lead  Co.,  40  N.  Y.  422. 

The  judgment  should  be  afifirmed. 

Gould  V.  Stein,  149  Mass.  570  ;  Henshaw  r.  Eobins,  9  Met.  83 ; 

Borrekins  v.  Bevan,  3  Kawle,  23,  Moorehouse  v.  Conistock,  42  Wis. 

168 ;  626. 

Hawkins  v.  Pemberton,  51  N.  Y.  But  see  Cosgrove  u.  Bennett,  32 

198  ;  Minn.  371 ;  Goulds  et  al.  v.  Brophy, 

VanWyck  v.  Allen,  69  N.  Y.  61 ;  42  Minn.  109. 

White  et  al.  v.  Miller  et  al,  71  N. 
Y. 118  ; 


IN    PERSONALTY — SALES.  389 

Sale   "with    all    faults." 

Whitney  v.  Boardman. 

Supreme  ("ourt  of  Massachusetts,  1875. 

118  Mass.  242. 

Devens,  J.  The  expression  in  the  contract,  by  which  the 
defendants  a£crecd  to  purchase  the  Cawnpore  buffalo  hides  with 
"all  faults,"  was  one  of  such  a  character  that,  if  in  common 
use  and  having  a  well-established  meaning  in  the  trade  in  such 
articles,  such  meaning  might  properly  be  shown.  It  is  not 
necessar}'  tbat  terms  should  be  technical,  scientific  or  ambiguous 
in  themselves  in  order  to  entitle  a  jtarty  to  show  by  parol  evi- 
dence the  meaning  attached  to  them  by  the  parties  to  the  con- 
tract: "VVhitmarsh  v.  Conway  Ins.  Co.,  16  Gray,  359;  Miller  v. 
Stevens,  100  Mass.  618  ;  Swctt  v.  Shumway,  102  Id.  365.  Xor 
does  it  appear  by  the  exceptions  that  any  evidence  was  admitted 
that  gave  to  these  words  any  meaning  diflerent  from  that  which 
the  presiding  Judge  attributed  to  tlicm  in  the  instruction  given 
by  him,  based  upon  the  hypothesis  that  the  jury  might  find 
that  there  was  no  meaning  determined  by  the  general  usage  of 
trade.  This  instruction  substantially  was  that  while  the  plain- 
tiffs must  prove  that  the  hides  were  "Cawnpore  buffalo  hides," 
known  and  sold  as  such,  yet  if  the  defendants  got  the  articles 
contracted  for,  having  agreed  to  take  them  "  with  all  faults," 
they  were  bound  to  take  them  with  "all  defects  arising  in  any 
way  either  from  defects  in  the  cure,  or  in  the  packing,  or  in 
the  shipping  or  transporting  of  the  hides,  not  however  included 
in  the  term  sea  damage."  For  the  contingency  of  damage  by 
sea  an  allowance  was  to  be  made,  according  to  the  contract,  in 
the  price.  The  defendants  argue  that  this  instruction  was 
defective,  and  that  it  was  not  only  necessary  for  the  plaintiffs 
to  show  that  these  were  Cawn])ore  hides,  but  also  that  they 
were  "  properly  cured  as  such  hides  should  be  cured,  properly 
packed  and  C)f  merchantable  quality," 

But  tlie  phrase  "  with  all  faults,"  cannot  be  limited,  as  th6 
defendants  contend,  "  to  all  such  faults  or  defects  as  the  thing 
26 


390  ILLUSTRATIVE    CASES 

described  ordinarily  has."  That  would  be  to  deprive  it  of 
force  entirely.  Its  meaning  is  such  faults  or  defects  as  the 
article  sold  might  have,  retaining  still  its  character  and  identity 
as  the  article  described.  The  authorities  cited  by  the  defend- 
ants sustain  this  view,  and  not  the  one  contended  for  by  them. 
Thus,  in  Shepherd  v.  Kain,  5  B.  &  Aid.  240,  7  Eng.  Com.  Law, 
cited  in  Henshaw  v.  Robins,  9  Met.  83,  it  was  held  that  in  the 
sale  of  a  copper-fastened  vessel  "  with  all  faults,"  the  term 
meant  such  faults  as  a  copper-fastened  vessel  might  have,  but 
that  it  would  not  cover  the  sale  of  a  vessel  not  copper-fastened. 
The  only  other  authority  cited  by  the  defendants  on  this  point 
is  Schneider  v.  Heath,  3  Camp.  506,  which  decides  no  more 
than  that  "to  be  taken  with  all  faults,"  cannot  avail  a  vendor 
who  knew  of  secret  defects  and  used  means  to  prevent  the 
buyer  from  discovering  them.  A  similar  limitation  was  given 
by  the  presiding  Judge  in  the  present  case.  jS'or,  if  the  phrase 
"  with  all  faults"  had  not  been  in  the  contract,  it  is  easy  to  see 
how  the  defendants  could  have  demanded  anything  more  than 
the  article  bought  by  them  should  answer  the  description  of 
"Cawnpore  buffalo  hides:"  Gossler  v.  Eagle  Sugar  Refinery, 
103  Mass.  331 ;  Boardman  v.  Spooner,  13  Allen,  353,  359. 

The  defendants  further  contend  that  the  rule  of  damages 
given  by  the  Court,  which  was  the  contract  price,  deducting 
therefrom  the  net  proceeds  of  the  auction  sale  of  the  hides 
made  by  the  plaintiffs,  was  erroneous.  But  by  no  other  rule 
would  the  plaintifis  have  been  indemnified  for  their  loss  by 
the  non-compliance  of  the  defendants  with  their  contract. 
They  were  not  obliged  to  keep  the  goods,  and  if  they  sold 
them,  the  expenses  of  such  sale  constitute  a  charge  upon  them 
caused  by  this  non-compliance,  whether  it  was  a  private  sale  or 
one  by  auction.  Of  the  intention  of  the  plaintifis  to  sell  at 
auction  the  defendants  were  notified  ;  it  does  not  appear  to 
have  been  an  unusual  mode  of  disposing  of  such  goods ;  and, 
having  violated  their  contract,  the  defendants  cannot  complain 
of  the  expenses  which  have  thus  been  occasioned. 

Exceptions  overruled. 

"Whitney  v.  Boardman,  118  Mass.  Pearce  t\  Blackwell,  12  Ired.  L. 

242  ;  49 ; 

Hanson    v.    Edgerly,   29   K.    H.  Ward  v.  Hobbs,  4  App.  Cas.  13. 
343; 


IN   PERSONALTY — SALES.  391 


REMEDIES. 

a. 

Of  Seller. 


Failure    to    perform. 

DUSTAN  V.  McAxDREW. 

Court  of  Appeals,  Xew  York,  1870. 


44  N".  Y.  72. 


Earl,  C.  The  contract  required  that  the  hops  should  be 
inspected  by  J.  S.  Brown,  or  some  other  inspector  satisfactory 
to  both  jiartics.  In  case  J.  S.  Brown  could  not  or  should  not 
inspect  them  for  any  reason,  then  they  were  to  be  inspected  by 
some  other  person  mutually  satisfactory.  Neither  party  had 
the  right  to  demand  any  other  inspector,  unless  Brown  nc- 
i^lected  or  refused  to  inspect.  It  is  doubtless  unusual  to  insert 
a  stipulation  in  contracts,  that  the  vendor  shall  inspect  the 
goods  sold.  But  wheie  jiarties  agree  to  this,  they  must  be 
bound  by  their  contract,  and  it  must  be  construed  the  same  as 
if  some  other  person  had  been  chosen  inspector. 

It  is  claimed  on  the  part  of  the  respondent,  and  was  held  by 
the  Court  below,  that  the  inspection  provided  for  was  intended 
simply  for  the  convenience  of  the  vendors,  to  enable  them  to 
perform  their  contract,  and  that  it  merely  furnished  prima  facie 
evidence  that  the  hops  answered  the  contract,  and  that  the  in- 
spection was  not  conclusive  upon  the  parties.  I  cannot  assent 
to  this.  The  contract  was  for  the  sale  and  purchase  of  hops 
of  a  certain  description,  and  the  object  of  the  inspection  was 
to  determine,  for  the  benefit  of  both  parties,  whether  they  an- 
swered that  description.  Until  the  vendors  delivered  the  hops 
with  the  inspection,  the  vendee  was  not  obliged  to  pay,  and 
when  so  delivered,  the  vendors  were  entitled  to  the  purchase 
price.  The  inspection  was  thus,  a?  much  for  the  convenience 
and  beiielit  of  one  party  as  the  other.    Its  pur^jose,  like  similar 


392  ILLUSTRATIVE   CASES 

provisions  in  a  variety  of  contracts,  was  to  prevent  dispute  and 
litjo-ation  at  and  after  performance.  But  if  the  inspection  was 
merely  for  the  convenience  of  the  vendors,  then  they  could  dis- 
pense with  it,  and  compel  the  vendees  to  take  the  hops  without 
any  inspection  whatever.  And  if  it  was  merely  prima  facie 
evidence  of  the  quality  of  the  hops,  then  it  was  an  idle  cere- 
mony, hecause,  not  being  binding,  the  vendee  could  still  dis- 
pute the  quality  of  the  hops,  refuse  to  take  them,  and  show,  if 
he  could,  when  sued  for  not  taking  them,  that  they  did  not 
answer  the  requirements  of  the  contract;  and  thus  the  plain 
purpose  for  which  the  provision  was  inserted  in  the  contract 
would  be  entirely  defeated. 

The  inspection  could  be  assailed  for  fraud,  or  bad  faith  in 
makino-  it,  and  perhaps  within  the  case  of  McMahon  v.  The 
New  York  &  Erie  Railroad  Co.  (20  N.  Y.  463),  because  made 
without  notice  to  the  vendee.  The  inspection  here  was  made 
without  notice ;  but  it  is  not  necessary  to  determine  whether 
this  renders  it  invalid,  as  no  such  defence  was  intimated  in  the 
answer  or  upon  the  trial. 

By  the  purchase  of  the  contract  the  defendants  were  substi- 
tuted, as  to  its  performance,  in  the  place  of  the  vendee  therein 
named,  and  were  bound  to  do  all  that  he  had  agreed  to  do  or 
was  bound  in  law  to  do.  When  r.otificd  that  the  hops  were 
ready  for  delivery  they  declined  to  take  them,  upon  the  sole 
ground  that  they  had  not  had  an  opportunity  to  examine  or 
inspect  them  ;  and  they  claimed  that  they  had  sent  one  Smith 
to  inspect  them,  and  that  he  had  been  declined  permission  to 
inspect  them.  There  was  no  proof,  however,  that  they  ever 
tried  to  examine  or  inspect  the  hops,  or  that  the  vendors  ever 
refused  to  permit  them  to  examine  or  inspect  them.  They  sent 
Smith  to  inspect  them,  and  he  went  to  one  of  the  several  store- 
houses where  some  of  the  hops  were  stored,  and  he  says  he  was 
there  refused  an  opportunity  to  inspect  them  by  Mr.  A.  A. 
Brown.  But  there  is  no  proof  that  he  was  in  any  way  con- 
nected with  the  vendor,  or  that  he  had  any  agency  or  authority 
whatever  from  them.  There  was  no  proof  that  defendants 
ever  tried  with  the  vendors  to  agree  upon  any  other  inspector, 
or  that  they  ever  asked  the  vendors  to  have  the  hops  inspected 
by  any  other  inspector,  and  they  made  no  complaint  at  any 


IN    PERSONALTY — SALES.  393 

time  tliat  they  were  inspected  without  notice  to  them.  The 
point  tljat  the^'  should  have  had  notice  of  the  inspection  wa« 
not  taken  in  the  motion  for  a  nonsuit,  nor  in  any  of  the  re- 
quests to  the  Court  to  charge  the  jur\-.  If  the  point  had  heun 
taken  in  the  answer  or  on  the  trial,  the  iijaintitf  might,  per- 
haps, have  shown  that  notice  was  given  hy  the  vendors,  or  that 
it  was  waived. 

Hence  we  must  hold,  upon  the  case  as  presented  to  us,  that 
there  was  no  default  on  the  part  of  the  plaintiff  or  the  vendors, 
and  that  the  defendants  were  in  default  in  not  takinf;  and  iiav- 
ing  for  the  iiops.  The  only  other  question  to  he  considered  is, 
whether  the  Court  erred  in  the  rule  of  damages  adopted  in 
ordering  the  verdict. 

The  Court  decided  that  the  plaintiff  was  entitled  to  recover 
the  difierence  hetween  the  contract  price  and  the  price  obtained 
by  the  plaintiff  upon  the  resale  of  the  hops,  and  refused,  upon 
the  request  of  the  defendants,  to  submit  to  the  jury  the  ques- 
tion as  to  the  market  value  of  the  hops  on  or  about  the  30th 
day  of  November. 

The  vendor  of  personal  property  in  a  suit  against  the  vendee 
for  not  taking  and  paying  for  the  property,  has  the  choice 
ordinarily  of  either  one  of  three  methods  to  indenmify  him- 
self. (1)  He  may  store  or  retain  the  property  for  the  vendee, 
and  sue  him  for  the  entire  purchase  price.  (2)  He  njay  sell 
the  property,  acting  as  the  agent  for  this  purpose  of  the  ven- 
dee and  recover  the  difierence  between  the  contract  price  and 
the  price  obtained  on  such  resale ;  or  (3)  He  may  keep  the 
property  as  his  own,  and  recover  the  difference  between  the 
market  price  at  the  time  and  place  of  delivery,  and  the  con- 
tract price :  2  Parsons  on  Con.,  484  ;  Sedgwick  on  Dams.,  282  ; 
Lewis  V.  Greider,  49  Barb.  GOG  ;  Pollen  v.  Le  Roy,  30  X.  Y. 
549.  In  this  case  the  plaintiti"  chose  and  the  Court  a]H)lied 
the  second  rule  above  mentioned.  In  such  case,  the  vendor  is 
treated  as  the  agent  of  the  vendee  to  make  the  sale,  and  all 
that  is  required  of  him  is,  that  he  should  act  with  reasonable 
care  and  diligence,  and  in  good  faith.  He  should  make  the 
sale  without  unnecessary  delay,  but  he  must  be  the  judge  as  to 
the  time  and  place  of  sale,  provided  he  act  in  good  faith  and 
with  reasonable  care  and  diligence.     Here  it  is  conceded  tiiat 


394  ILLUSTRATIVE   CASES 

the  sale  was  fairly  made ;  it  was  made  in  the  city  of  New  York, 
in  less  than  one  month  from  the  time  the  defendants  refused  to 
take  the  hops.  It  was  not  claimed  on  the  triyl  that  the  delay 
was  nnreasonable,  and  we  can  find  nothing  in  the  case  to  autlio- 
rize  ns  to  hold  that  it  was  unjustifiable.  We  are,  therefore,  of 
the  opinion,  that  the  Court  did  not  err  as  to  the  rule  of  dam- 
ages. 

The  judgment  should,  therefore,  be  afiirmed  with  costs. 


"STOPPAGE  IN  TRANSITU." 

LoEB  et  al.  V.  Peters  et  al. 

Supreme  Court  of  Alabama,  1879. 

63  Ala.  243. 

Manning,  J.  Munter  &  Brother,  being  largely  in  debt,  and 
insolvent,  by  an  order  requesting  shipment  to  them,  bought  of 
plaintifi:*s,  J.  M.  Peters  &  Brother,  of  Virginia,  twenty -five  boxes 
of  tobacco  ;  which  they  accordingly  sent  as  directed  to  Munter 
&  Brother,  at  Montgomery,  Alabama,  by  railroad,  forwarding 
to  them  by  mail  a  bill  of  lading  therefor.  On  receipt  of  this, 
several  days  before  the  boxes  arrived,  Munter  &  Brother  in- 
dorsed it,  and  transferred  their  right  to  the  goods  to  J.  Loeb 
&  Brother,  who  gave  them  credit  for  the  same,  on  a  debt  past 
due,  which  Munter  &  Brother  owed  them.  There  was  no 
other  consideration  for  this  transfer.  Soon  afterwards,  Peters  & 
Brother,  being  informed  of  the  insolvency  of  Munter  &  Brother, 
and  claiming  the  right  to  stop  the  tobacco  in  transitu^  demanded 
it  of  the  carrier,  the  South  &  North  Alabama  Railroad  Com- 
pany, and  sued  the  same  in  detinue  for  it,  having  first  oflfered 
to  pay  the  freight  money.  Loeb  &  Brother  intervened  as  claim- 
ants, and  thereby  obtained  possession  of  the  goods.  Where- 
upon, the  suit  was  prosecuted  against  them,  to  a  verdict  and 
judgment  in  favor  of  Peters  &  Brother,  from  which  Loeb  & 
Brother  have  appealed  to  this  Court. 

We  do  not  concur  in  the  opinion  expressed  in  Rogers  v. 
Thomas  (20  Conn.  54),  that  a  vendor  of  goods,  in  transit  to  an 
insolvent  vendee,  cannot  stop  them  on  the  way,  before  delivery, 


IN    PERSONALTY — SALES.  395 

unless  the  iusolveney  of  the  vendee  occurred  after  the  sale  to 
him  of  the  goods.  We  thhik,  with  tlie  Supreme  Court  of  Ohio, 
thut  tlie  vendor  may  stop  the  goods  upon  a  subsequent  dis- 
covery of  insolvency  existing  at  the  time  of  the  sale,  as  well  as 
upon  a  subsequent  insolvency.  If  there  be  a  want  of  ability  to 
pay,  it  can  make  no  difference,  in  justice  or  good  sense,  whether 
it  was  produced  by  causes,  or  shown  by  acts, at  a  period  beibre 
or  after  the  sale:  Benedict  v.  Schuettic,  12  Ohio  St.  515  ;  Rey- 
nolds V.  Boston  &  M.  11.  R.  Co.,  43  :N'.  II.  589  ;  O'Brien  v.  Xor- 
ris,  IG  Md.  122  ;  Blum  v.  Marks,  21  La.  Ann.  268.  The  best 
deHnition  of  the  right  which  we  have  seen  is  that  in  I'arson's 
Mercantile  Law,  as  follows :  "A  seller,  who  has  sent  goods  to 
a  buyer  at  a  distance,  and,  after  sending  them,  finds  that  the 
buyer  is  insolvent,  may  stop  the  goods  at  any  time  before  they 
reach  the  buyer.  His  right  to  do  this  is  called  the  right  of 
stoi)page  in  transitu.''     Chap.  X,  p.  GO. 

If,  before  this  right  is  exercised,  the  buyer  sells  the  goods, 
and  indorses  the  bill  of  lading  for  them  to  a  purchaser  in  good 
faith,  and  for  value,  the  right  of  the  first  vendor  to  retake  them 
is  extinguished:  Lickbarron  v.  Mason,  1  Smith's  Lead.  Cases, 
388.  Evidence,  therefore,  that  Loeb  &  Brother  knew,  when 
they  took  a  transfer  of  the  bill  of  lading,  that  Munter  &  Brother 
were  insolvent,  was  relevant  and  proper  to  show,  in  connection 
with  other  testimony,  that  Loeb  &  Brother  were  not  bona  fide 
purchasers.  And  there  was  no  error  in  permitting  a  witness 
to  testify  Avhat  one  of  that  firm  had  previously  said,  tending 
to  show  such  knowledge,  when  he  was  giving  evidence  in  an- 
other cause.  Statements  and  declarations,  relevant  to  the 
matter  in  hand,  which  have  been  made  by  a  party  to  a  cause, 
may  be  proved  against  him,  without  his  adversary  being  com- 
pelled to  use  such  party  as  a  witness  in  a  suit  in  which  ho  is 
interested. 

The  two  judgments  against  Munter  &  Brother,  in  favor  of 
creditors,  confessed  by  the  former  before  the  tobacco  had 
reached  its  destination,  and  the  seizure  upon  execution  the 
next  day  of  property  of  Munter  &  Brother,  by  the  sheriff, 
tended  to  prove  their  insolvency ;  and  the  evidence  of  those 
facts  was,  therefore,  properly  admitted. 

The  transfer  of  a  bill  of  lading,  as  a  collateral  to  previous 


396  ILLUSTRATIVE   CASES 

obligations,  without  anything  advanced,  given  up,  or  lost  on 
the  part  of  the  transferree,  does  not  constitute  such  an  assign- 
ment as  will  preclude  the  vendor  from  exercising  the  right  of 
stoppage  in  transitu.  Said  Bradley,  Circuit  Justice,  in  Lcsas- 
sier  V.  The  Southwestern,  2  Woods,  35  :  "  Nothing  short  of  a 
honajide  sale  of  the  goods  for  value,  or  the  possession  of  them 
by  the  vendee,  can  defeat  the  vendor's  right  of  stoppage  in 
transitu;  and  hence  it  has  been  held,  that  an  assignee  in  trust 
for  creditors  of  the  insolvent  vendee  is  not  a  purchaser  for 
value,  and,  consequently,  takes  subject  to  the  exercise  of  any 
right  of  stoppage  in  transitu  which  may  exist  against  the  as- 
sisnor :  Harris  v.  Pratt,  IT  N.  Y.  249."  Wherefore  it  was  held 
in  the  latter  case,  that  an  attachment  in  the  suit  of  the  vendee's 
creditor,  of  goods  landed  by  the  carrier  upon  a  wharf-boat  at 
the  place  of  delivery,  did  not  prevent  the  vendor  from  stopping 
them  in  transitu.  See,  also,  O'Brien  v.  ISTorris,  16  Md.  122; 
Naylor  v.  Dennie,  8  Pick.  199  ;  Nicholls  v.  Lcfeuvre,  2  Bingh. 
(N.  C.)  81,  29  Eng.  Com.  Law.  The  doctrine  is  based  upon  the 
plain  reason  of  justice  and  equity,  enunciated  in  D'Aguila  v. 
Lambert  (2  Eden's  Ch.  77),  that  "  one  man's  property  should 
not  be  applied  to  the  payment  of  another  man's  debt."  The 
right  itself  is  regarded  as  an  extension  merely  of  the  lien  for 
the  price,  which  the  seller  of  goods  has  on  them  while  remain- 
ing in  his  possession  ;  which  lien  the  Courts  will  not  permit  to 
be  superseded  before  the  vendee,  who  has  become  insolvent, 
obtains  possession,  unless,  in  the  meantime,  the  goods  have 
been  sold  to  a  person  who,  in  good  faith,  has  paid  value  for 
them,  and  so  would  be  a  loser  by  his  purchase,  if  that  were  held 
invalid.  Appellants  having  only  credited  Munter  &  Brother 
on  a  debt  previously  due  from  them,  with  the  price  of  the 
tobacco,  have  nothing  more  to  do,  in  order  to  get  even,  than  to 
debit  them  with  the  same  sum,  for  the  non-delivery  of  the  goods 
in  consequence  of  the  defect  in  Munter  &  Brother's  title. 

The  case  of  Crawford  v.  Kirksey  (55  Ala.  282),  so  much  re- 
lied on  by  appellants,  is  wholly  unlike  this.  The  question  of 
stoppage  iri  transitu  was  in  no  way  involved  in  it.  The  con- 
troversy there,  was  whether  a  conveyance  by  a  debtor  in  a 
failing  condition  of  property  which  was  indisputably  and 
entirely  his,  in  payment  of  a  debt  to  one  of  his  creditors,  was 


IN    PERSONALTY  — SALES.  397 

not  void  as  to  the  others ;  and  this  Court  decided,  that  tlie  law 
permitted  sueh  a  preference,  and  that  the  transaction  was  not 
fraudulent  in  fact. 

It  results  from  wliat  we  have  said,  tliat  there  was  no  error 
in  the  charges  to  the  jury. 

Let  the  judgment  of  the  Circuit  Court  he  affirmed. 


b. 
Of    Buyer. 

For   Non-delivery. 

AVhitmarsii  v.  Walker. 

Supreme  Judicial  Court  of  Massachusetts,  1840. 

1  Met.  313. 

Wilde,  J.  This  action  is  founded  on  a  parol  agreement, 
whereby  the  defendant  agreed  to  sell  to  the  plaintift'  two  thou- 
sand mulberry  trees  at  a  stipulated  price  ;  the  trees,  at  the  time 
of  the  agreement,  being  growing  in  the  close  of  the  defendant. 
It  was  proved  at  the  trial,  that  the  plaintiff  paid  the  defendant 
in  hand  the  sum  of  ten  dollars,  in  part  payment  of  the  price 
thereof,  and  promised  to  pay  the  residue  of  the  price  on  the 
delivery  of  the  trees,  which  the  defendant  promised  to  deliver 
on  demand  ;  but  which  promise,  on  his  part,  he  afterwards 
refused  to  perform.  And  the  defence  is  that  the  contract  was 
for  the  sale  of  an  interest  in  land,  and  therefore  void  by  the 
Rev.  Sts.,  c.  74,  §  1. 

In  support  of  the  defence,  it  has  been  argued,  that  trees 
growing,  and  rooted  in  the  soil,  appertain  to  the  realty,  and 
that  the  contract  in  question  was  for  the  sale  of  trees  rooted 
and  growing  in  the  soil  of  the  defendant  at  the  time  of  the 
sale.  On  the  part  of  the  plaintiff  it  was  contended,  that  the 
trees  contracted  for  were  raised  for  sale  and  transplantation, 
and,  like  fruit  trees,  shrubs,  and  plants  rooted  in  the  soil  of  a 
nursery  garden,  are  not  within  the  general  rule,  but  are  to  be 
considered  as  personal  chattels.  This  question  was  discussed 
and  considered  in  Miller  v.  Baker  (1  ^let.  27),  and  we  do  not 


398  ILLUSTRATIVE    CASES 

deem  it  necessary  to  reconsider  it  in  reference  to  the  present 
case.  We  do  not  consider  the  agreement  set  forth  in  the 
declaration  and  proved  at  the  trial  as  a  contract  of  sale  con- 
summated at  the  time  of  the  agreement;  for  the  delivery  was 
[tostponed  to  a  future  time,  and  the  defendant  was  not  bound 
to  complete  the  contract  on  his  part,  unless  the  plaintiff  should 
be  ready  and  willing  to  complete  the  payment  of  the  stipulated 
price :  Sainsbury  v.  Matthews,  4  Mces.  &  Welsh.  347.  Inde- 
pendently of  the  Statute  of  Frauds,  and  considering  the  iigree- 
nient  as  valid  and  binding,  no  property  in  the  trees  vested 
thereby  in  the  plaintiff.  The  delivery  of  them  and  the  pay- 
ment of  the  price  were  to  be  simultaneous  acts.  The  plaintiff 
cannot  maintain  an  action  for  the  non-delivery,  without  proving 
that  he  offered  and  was  ready  to  complete  the  payment  of  the 
price ;  nor  could  the  defendant  maintain  an  action  for  the 
price  without  proving  that  he  was  ready,  and  offered,  to 
deliver  the  trees.  According  to  the  true  construction  of  the 
contract,  as  we  understand  it,  the  defendant  undertook  to  sell 
the  trees  at  a  stipulated  price,  to  sever  them  from  the  soil,  or 
to  permit  the  plaintiff"  to  sever  them,  and  to  deliver  them  to 
him  on  demand  ;  he  at  the  same  time  paying  the  defendant 
the  residue  of  the  price.  And  it  is  immaterial  whether  the 
severance  was  to  be  made  by  the  plaintiff'  or  the  defendant. 
For  a  license  for  the  plaintiff  to  enter  and  remove  the  trees 
would  pass  no  interest  in  the  land,  and  would,  w'ithout  writing, 
be  valid,  notwithstanding  the  Statute  of  Frauds. 

This  subject  was  fully  considered  in  the  case  of  Taylor  v. 
Waters,  7  Taunt.  374,  2  Eng.  Com.  Law;  and  it  was  held 
that  a  beneficial  license,  to  be  exercised  upon  land,  may  be 
granted  without  deed,  and  without  writing;  and  that  such  a 
license,  granted  fur  a  valuable  consideration,  and  acted  upon, 
cannot  be  countermanded.  The  subject  has  also  been  ably  and 
elaborately  discussed  by  Chief  Justice  Savage,  in  the  case  of 
IMumford  v.  Whitney,  15  Wend.  380,  in  which  all  the  authori- 
ties are  reviewed;  and  we  concur  in  the  doctrine  as  therein 
laid  down,  namely,  that  a  permanent  interest  in  land  can  be 
transferred  only  by  writing,  but  that  a  license  to  enter  upon 
the  land  of  another  and  do  a  particular  act  or  a  series  of  acts, 
without  transferring  any  interest  in  the  land,  is  valid,  though 


IN    PERSONALTY — SALES.  399 

not  in  writing.  And  such  is  the  license  on  which  the  plain  tiff 
relies  in  the  present  case. 

Chancellor  Kent,  in  his  Commentaries  (Vol.  III.,  p.  452,  3(1 
ed.),  very  justly  remarks,  that  "the  distinction  between  a  privi- 
lege or  easement  carrying  an  interest  in  the  land,  and  requiring 
a  writing,  within  the  Statute  of  Frauds,  to  support  it,  and  a 
license  which  may  be  by  parol,  is  quite  subtil,  and  it  becomes 
difficult,  iu  some  of  the  cases,  to  discern  a  substantial  dilfcr- 
ence  between  them."  But  no  such  difHculty  occurs  in  the 
present  case.  The  plaintiff  claims  no  riglit  to  enter  on  the 
defendant's  land  by  virtue  of  the  license.  It  is  ailmitted  that 
he  had  a  legal  right  to  revoke  his  license.  But  if  he  exercised 
his  legal  right  in  violation  of  his  agreement,  to  the  plaintiif's 
jiivjudice,  he  is  responsible  in  damages.  We  think  it,  there- 
iore^  clear  that  giving  to  the  contract  the  construction  already 
stated,  the  plaintiff  is  entitled  to  recover.  If,  for  a  valuable 
consideration,  the  defendant  contracted  to  sell  the  trees  and  to 
deliver  them  at  a  future  time,  he  was  bound  to  sever  them 
from  the  soil  himself,  or  to  permit  the  jilaintiff  to  do  it,  and 
if  he  refused  to  com[)ly  with  his  agreement,  he  is  responsible 
in  damages. 

Judcrment  on  the  verdict. 


RESCISSION. 

ROBSON  V.  BOHN. 

Supreme  Court  of  Minnesota,  1S7G. 
2-2  Minn.  410. 

Berry,  J.  This  is  an  appeal  from  an  order  grnnting  a 
new  trial.  In  assigning  reasons  foi-  the  order,  it  is  said  by  the 
Court  below  that  the  motion  ibr  the  new  trial  is  made  "  u\Hm 
the  ground,  chiefly,  that  tlie  findings  of  fact  are  against  the 
evidence."  U[K)n  that  ground,  as  we  understand  it,  the  Court 
below  has  proceeded  in  granting  the  new  trial,  and  in  laying 
down  rules  of  law  applicable,  not  to  the  facts  as  found  by  the 
referee,  but  to  the  somewhat  contrary  state  of  facts  which,  iu 


400  ILLUSTRATIVE    CASES 

the  opinion  of  the  Court  below,  the  evidence  in  the  case  teuds 
to  establish. 

By  the  terms  of  the  written  contract  between  the  parties  the 
plaintift"  was  bound  to  furnish  at  least  200,000  feet  of  lumber 
before  the  1st  day  of  August.  The  referee  finds,  and  the  plain- 
titf  claims  here,  that  the  plaintiff  did  furnish  that  amount 
before  that  time,  thus  fulfilling  the  agreement  upon  his  part 
up  to  that  date.  But  the  bills  made  out  by  plaintifi'  and 
handed  to  defendant,  and  which,  as  is  shown  by  the  evidence, 
contain  a  full  account  of  all  the  lumber  furnished  under  the 
contract,  do  not  sustain  the  referee  in  his  finding.  On  the 
contrary,  they  show  th-at  the  plaintiff  had  furnished  less  than 
194,000  feet  before  the  1st  day  of  August,  and  that,  therefore, 
he  had  failed  to  fulfill  his  contract.  The  plaintiff'  was,  there- 
fore, guilty  of  the  first  default,  and  as  he  had  thus  failed  to 
perform  the  contract  upon  his  part,  and  as  he  refused  to  go  on 
and  perform  it,  the  defendant  had  the  right,  if  he  saw^  fit,  to 
treat  the  contract  as  at  an  end,  and  to  refuse  to  make  the 
$2000  payment,  which,  by  the  terms  of  the  contract,  he  had 
bound  himself  to  make  on  the  1st  day  of  August.  The  de- 
fendant took  this  course,  as  the  evidence  in  the  case  shows. 

Under  this  state  of  facts  we  think  that  the  Court  below  is 
right  in  saying  that  the  "  contract  not  having  been  performed 
by  either  of  the  parties,  and  having  been  abandoned  by  both 
of  them,  the  plaintiff"  must  recover,  if  at  all,  upon  defendant's 
implied  contract  to  pay  the  value  of  the  lumber  received  and 
kept  by  him:"  2  Smith  Lead.  Cas.  (6th  Am.  ed.)  30,  40.  In 
applying  this  rule  to  the  case  we  are  of  opinion  that  the  Court 
below  was  right  in  holding  thiit  the  evidence  showed  the  value 
of  the  lumber  received  by  defendant  to  be  considerabl}^  less 
than  the  contract  price,  and,  of  course,  in  further  holding  that 
the  referee  erred  in  allowing  such  contract  price. 

As  to  the  GOOO  feet  of  roofing  referred  to  in  the  opinion  of 
the  Court  below,  it  is  unnecessary  to  speak,  as  the  case  goes 
back  for  a  new  trial. 

We  are  further  of  opinion  that  the  Court  below  was  right 
in  reference  to  the  effect  of  the  rendition  of  the  daily  bills  of 
lumber  furnished  outside  of  the  contract  before  spoken  of. 
The  counsel  for  plaintiff  contends  that  the  rendition  of  daily 


IN    PERSONALTY — SALES.  401 

bills  of  lumber  funiished  umlcr  tbo  contract  should  hiive  the 
same  eilect — that  is  to  say,  that  tlie  bills  should  stand  upon 
the  footing  of  accounts  stated. 

If  received  and  kept  without  objection  by  defendant,  they 
mi^ht  very  properly  have  the  eil'ect  of  accounts  stated,  so  far 
as  tlie  question  of  the  quantities  of  lumber  therein  mentioned 
was  concerned  ;  but,  so  far  as  prices  are  concerned,  they  could 
not  have  the  effect  of  accounts  stated,  not  only  because  the 
bills  contain  no  prices  or  amounts  in  dollars  and  cents,  but 
because  the  bills  were  furnished  under  a  then  existing  contract 
as  to  [iriccs,  which  contract  has  been  abandoned  by  both  parties, 
as  the  Court  below  tinds. 

Order  afiirraed. 


REPLEYIX. 

SCUDDER  V.  WORSTER  ct  (ll. 

Supreme  Judicial  Court  of  Massachusetts,  1853. 
11  Cush.  573. 

Dewey,  J.  This  case  is  submitted  upon  an  agreed  statement 
of  facts,  upon  which  the  Court  are  to  enter  judgment.  The 
first  question  presented,  that  of  jiroper  pleadings  and  si.ecifica- 
tion  of  defence,  would  have  been  more  ])r()perly  raised,  had  the 
case  taken  the  ordinary  course  of  a  trial  by  jury.  By  making 
a  statement  of  facts,  and  asking  the  judgment  of  this  Court 
thereon,  the  parties  ai'c  understood  to  have  waived  all  questions 
as  to  the  formal  pleadings,  unless  those  questions  are  in  direct 
terms  reserved.  For  obvious  reasons,  this  ought  to  be  so,  as  the 
opportunities  for  amendments  of  the  pleadings  would  be  much 
greater,  and  they  could  be  more  conveniently  allowed  in  the 
earlier  stages  of  the  case.  The  precise  objection  taken  by  the 
plaintiff  as  to  this  matter  is,  that  the  defendants  by  pleading 
the  general  issue  without  a  specification  alleging  the  property 
in  themselves  in  the  articles  replevied,  admit  the  property  in 
these  articles  to  be  in  the  i)laintiff,  and  deny  only  tlie  taking  of 
the  same. 

If  this  were  so,  yet  in  a  case  when  the  right  of  property  was 


402  ILLUSTRATIVE    CASES 

in  fact  the  real  matter  in  controversy,  and  the  defendant  had 
through  some  misapprehension  omitted  to  set  forth  his  claim 
of  right  of  property,  an  amendment  ought  to  be  allowed  to  that 
effect,  upon  proper  terms,  if  on  trial  before  a  jur^' ,  or  the  facts 
discharged  and  the  case  sent  to  trial,  if  the  case  were  submitted 
to  the  Court  upon  an  agreed  statement  of  facts,  if  it  were 
necessary  to  secure  the  defendant  a  hearing  upon  the  merits  of 
the  case.  J3ut  in  the  present  case  we  think  the  right  of  the 
defendants  to  assert  their  property  in  the  articles  replevied  is 
not  concluded  by  the  form  of  the  pleadings  ;  tirst,  for  the  reason 
already  assigned,  that  the  parties  have  made  a  case  upon  a 
statement  of  facts,  and  thus  waived  the  objection  as  to  the  form 
of  the  pleadings ;  and,  secondly,  because  under  our  statute  of 
1836,  c.  273,  abolishing  special  pleading,  and  allowing  no  other 
plea  than  the  general  issue,  that  was  properly  pleaded,  and  no 
call  having  been  made  for  any  specification  of  defence,  and  no 
objection  taken  to  its  omission,  until  the  argument  was  heard 
here  upon  the  statement  of  facts,  it  w^as  too  late  to  raise  the 
point:  Miller  z;.  Sleeper,  4  Cush.  369.  ^ov  can  the  plaintilf 
aid  his  case  by  reference  to  his  writ  commanding  the  oflBcer  to 
replevy  150  barrels  of  pork,  "  the  property  of  the  plaintiff," 
and  the  return  indorsed  thereon  by  the  officer  that  "  he  had  re- 
plevied the  within-mentioned  property."  An  officer's  return, 
however  conclusive  as  to  the  service  of  process,  settles  nothing 
of  the  right  of  property  of  the  parties.  This  case  must  be 
decided  upon  the  result  we  shall  come  to  upon  the  principal 
question  so  fully  argued,  whether  the  property  in  the  150  bar- 
rels of  pork  ever  passed  from  the  vendors  by  a  sale  so  far  com- 
plete as  to  authorize  the  plaintiff  to  maintain  his  action  of 
replevin  for  the  same. 

It  appears  from  the  facts  stated,  that  on  February  10,  1850, 
a  contract  was  made  by  the  defendants  w^ith  Secomb,  Taylor  & 
Co.,  to  sell  them  250  barrels  of  pork  branded  "  Worcester  and 
Hart;"  that  a  bill  of  sale  of  the  pork  was  made  and  delivered 
to  them,  and  they  gave  the  defendants  their  negotiable  promis- 
sory notes  of  hand  therefor,  payable  in  six  months  ;  that  it  was 
further  agreed  that  the  pork  should  remain  in  defendants' 
cellar  on  storage,  at  the  risk  and  expense  of  the  purchasers ; 
that  Secomb,  Taylor  &  Co.,  on  the  13th  of  May,  1850,  sold  100 


I.N    I'LltsONALTY  —  SALES.  403 

barrels  of  the  pork  to  one  Lang,  ^vho  received  the  sarae  of  the 
dcfeiitluiits  upon  the  order  of  Seconib,  Taylor  &  Co.  ;  that  on 
the  27th  of  May,  1850,  Seconib,  Taylor  &  Co.  sold  the  plaintiff 
150  barrels,  with  an  order  on  the  defendants  therefor.  The 
next  day  the  plaintitf  gave  notice  to  the  defendants  of  the  pur- 
chase, and  requested  them  to  h(dd  the  same  on  storage  for  him, 
to  which  the  defendants  assented.  On  the  25th  of  June, 
Secomb,  Taylor  and  Company  became  insolvent,  and  on  the 
same  day  the  plaintiff  called  upon  the  defendants  for  the  i)ur- 
pose  of  recovering  the  150  barrels  of  pork,  but  the  defendants 
refused  to  allow  him  to  do  so.  On  the  next  day  a  more  formal 
demand,  accompanied  by  an  offer  to  pay  storage,  was  made, 
which  being  refused  by  the  defendants,  an  action  of  replevin 
was  instituted,  and  150  barrels  of  pork,  the  same  now  in  contro- 
versy, were  taken  and  removed  from  said  cellar  and  delivered 
to  the  plaintitf. 

The  further  fact  is  stated  in  the  case,  and  it  is  this  which 
raises  the  question  of  property  in  the  plaintiff,  that  the  pork 
bargained  and  sold  in  the  manner  above  stated  was  in  the 
cellar  of  the  defendants,  and  a  parcel  of  a  larger  quantity  of 
the  same  brand,  and  also  with  some  of  a  diflerent  brand,  and 
BO  continued  parcel  of  a  larger  quantity  of  similar  brand,  up  to 
the  time  of  the  suing  out  of  the  plaintiffs  writ  of  replevin  : 
thouo-h  this  fact  was  not  at  the  time  of  the  sale  stated  to  the 
purchasers,  or  to  the  plaintiff  when  he  purchased  of  Secomb, 
Taylor  &  Company.  Had  these  250  barrels  of  pork  been  a 
separate  parcel,  or  had  the  parties  designated  them  by  any 
visible  mark,  distinguishitig  them  from  the  residue  of  the 
vendor's  stock  of  pork,  the  sale  would  clearly  have  been  an 
absolute  one,  and  the  property  would  at  once  have  passed  to 
the  purchaser.  There  was  nothing  required  to  have  been  done 
but  this  separation  from  the  general  mass  of  like  kind  to  have 
placed  the  sale  beyond  all  question  or  doubt  as  to  its  validity. 

The  cases  cited  by  the  plaintiff's  counsel  fully  establish  the 
position,  that  what  was  done  in  this  case  would  have  trans- 
ferred the  property  in  the  pork,  if  the  sale  had  been  of  all  the 
pork  in  the  cellar,  or  of  any  entire  parcel  separated  from  the 
residue,  or  if  the  250  barrels  had  some  descriptive  mark  dis- 
tinguishing them  from  the  other  barrels  not  sold.     The  diffi- 


404  ILLUSTRATIVE    CASES 

cuUy  in  the  case  is,  in  maintaininti;  that  in  the  absence  of  each 
ami  all  these  eircnnistanccs,  distinguishing  the  articles  sold, 
the  particular  barrels  of  pork  selected  hy  the  officer  from  the 
larger  mass  when  he  served  this  process,  were  the  property  of 
the  plaintift",  or  ha<l  ever  passed  to  him.  In  addition,  how- 
ever, to  the  numerous  cases  cited  to  establish  the  general 
principles  contended  for  on  the  part  of  the  plaintiff,  and  which 
would  have  been  decisive,  if  it  had  been  a  sale  of  all  the  pork 
in  the  cellar,  or  a  particular  parcel,  or  certain  barrels  having 
descriptive  marks  which  would  enable  the  vendee  to  separate 
his  own  from  the  residue,  were  cited  several  more  immediately 
bearing  upon  the  present  case,,  and  were  properly  not  separable, 
has  been  held  to  pass  to  the  vendee.  The  leading  case  relied 
upon  is  that  of  Pleasants  v.  Pendleton,  6  Rand.  475.  This  was 
an  action  by  the  vendor  to  recover  the  price  of  119  barrels  of 
flour  sold  to  the  defendant.  No  other  objection  existed  to  the 
validity  of  the  sale,  except  that  the  119  barrels  were  a  parcel 
of  123  barrels,  all  of  similar  kind,  in  the  same  warehouse. 
There  were  certain  brands  or  marks  on  the  entire  123  barrels. 
The  flour  was  destroyed  by  fire  while  on  storage,  and  the 
vendee  refused  to  pay  for  the  119,  upon  the  ground  that  the 
sale  was  not  perfected  for  want  of  separation  from  the  123 
barrels.  The  Court  refused  to  sustain  the  defence,  and  gave 
judgment  for  the  plaintifl".  In  reference  to  this  case  Grimke, 
J.,  in  Woods  v.  McGee,  7  Ohio,  127,  says,  "  it  is  impossible  to 
divest  ourselves  of  the  impression  that  the  small  difl'erence  be- 
tween the  aggregate  mass  and  the  quantity  sold,  the  former 
being  123  barrels  and  the  latter  119,  may  have  influenced  the 
decision.  It  was  a  hard  case,  and  hard  cases  make  shipwreck 
of  principles." 

Jackson  v.  Anderson,  4  Taunt.  24,  was  an  action  of  trover  to 
recover  for  the  conversion  of  1969  Spanish  dollars.  It  appeared 
that  the  amount  had  been  transmitted  to  a  consignee  for  the 
use  of  the  plaintiff,  but  they  were  in  a  parcel  of  $4918,  all  of 
which  came  into  the  hands  of  the  defendant.  Among  other 
points  raised  at  the  argument  w^as  this,  that  there  was  nothing 
to  distinguish  the  $1969  from  the  entire  mass  ;  that  there  had 
been  no  separation,  and  of  course  the  plaintiff  had  no  property 
in  any  particular  portion  of  the  money.     The  point,  it  seems, 


IN    PERSONALTY — SALES.  405 

was  not  made  at  tlie  tiial  belore  tlie  jury,  but  suggested  by  the 
Court  during  the  argument  before  the  full  Coui^t,  and  this  is 
stated  by  the  reporter;  the  Court  interrui)ted  the  counsel,  and 
intimate.l  a  strong  doubt,  as  there  was  nothing  to  distinguish 
the  $1009  from  the  remaining  contents  of  the  barrel,  whether 
tlie  action  could  lie.  At  a  future  day  the  Court  gave  judg- 
ment for  the  i)laintiff.  The  objection  was  overruled  uj.on  the 
ground  that  the  defendant  had  disposed  of  all  the  dollars, 
consequently  he  had  disposed  of  those  belonging  to  tlie  plaintiff. 

The  case  of  Gai-dner  v.  Dutch,  9  Mass.  427,  Is  apparently  tlie 
strongest  case  in  favor  of  the  plaintiti'.  The  case  was  replevin 
against  an  ofHcer  who  had  attached  goods  as  tlie  proi)erty  of 
Wellman  and  Ropes.  The  plaintiff  had  76  bags  of  cofiee,  to 
which  he  became  entitled  as  owner,  upon  an  adjustment  of  ac- 
counts of  a  voyage  he  had  iDerformed  for  Wellnian  and  Ropes, 
but  the  bags  belonging  to  the  plaintiff  were  in  no  way  dis- 
tinguished by  marks,  or  separated  from  the  other  coffee  of 
Wellman  and  Ro])es.  The  i.laintiff  on  his  arrival  at  Salem, 
from  his  voyage,  delivering  the  entire  cofiee  to  Wellman  and 
Ropes,  taking  their  receipt  "for  76  bags  of  cofiee,  being  his 
adventure  on  board  schooner  Liberty,  and  which  we  hold  sub- 
ject to  his  order  at  any  time  he  may  jdease  to  call  for  the  same." 
The  point  taken  in  the  carse  was  that  the  i)laintiff  had  not  the 
sole  property,  but  only  an  undivided  interest,  and  so  could  not 
maintain  replevin.  The  Court  ruled  that  the  plaintiff  was  not 
a  tenant  in  common,  but  might  have  taken  the  number  of  bao-s 
to  which  he  was  entitled,  at  his  own  selection,  and  miirht 
maintain  his  action. 

This  case,  on  the  face  of  it,  seems  to  go  far  to  recognize  the 
right  of  one  having  a  definite  number  of  bai-rels  of  any  given 
articles  mingled  in  a  common  mass,  to  select  and  take,  to  the 
number  he  is  entitled,  although  no  previous  separation  had 
taken  place.  It  is,  however,  to  be  borne  in  mind  in  reference 
to  this  case,  that  it  did  not  arise  between  vendor  and  vendee. 
The  interest  in  the  76  bags  of  cofiee  did  not  originate  by  pur- 
chase from  Wellman  and  Rojk's.  They  became  the  specific 
property  of  the  plaintiff  in  that  action,  on  an  adjustment  of  an 
adventure,  the  whole  proceeds  of  which  were  in  his  hands, 
and  separated  with  the  possession,  only  when  he  took  their  ac- 
27 


406  ILLUSTRATIVE    CASES 

countable  receipts  for  76  bags,  held  by  tliein  on  liis  account. 
It  (lid  not  raise  the  question,  here  so  fully  discussed,  as  to  what 
is  necessary  to  constitute  a  delivery,  and  how  tar  it  was  neces- 
sary to  have  a  separation  from  a  mass  of  articles,  to  constitute 
a  transfer  of  title.  Perhaps  the  circumstances  may  well  have 
warranted  that  decision,  but  we  are  not  satisfied  that  the 
doctrine  of  it  can  be  properly  applied  to  a  case  where  the  party 
asserts  his  title,  claiming  only  as  a  purchaser  of  a  specific  num- 
ber of  barrels,  there  having  been  no  possession  on  his  part,  and 
no  separation  of  the  same  from  a  larger  mass  of  articles  similar 
in  kind,  and  no  descriptive  marks  to  designate  them. 

On  the  other  band,  in  support  of  the  position  that  this  sale 
was  never  perfected,  for  want  of  such  separation  of  the  particular 
barrels  on  account  of  the  plaintiff,  or  some  designation  of  them 
from  others  of  like  kind,  there  will  be  found  a  strong  weight 
of  authority,  and  to  some  of  the  most  prominent  cases  I  will 
briefly  refer.     Thus,  in  the  case  of  Hutchinson  v.  Hunter,  7 
Barr,  140,  which  was  an  action  of  assumpsit  to  recover  pay- 
ment for  100  barrels  of  molasses  sold  to  the  defendant,  the 
same  being  parcel  of  125  barrels,  and  the  whole  destroyed  by 
fire  while  on  storage,  and  before  separation  or  designation  of 
any  particular  barrels,  it  was  held  that  the  plaintiff  could  not 
recover,  the  sale  never  having  been  consummated.     Rogers,  J., 
says :  "  The  fundamental  rule  which  applies  to  this  case  is,  that 
the  parties  must  be  agreed  as  to  the  specific  goods  on  which 
the  contract  is  to  attach,  before  there  can  be  a  bargain  and  sale. 
The  goods  must  be  ascertained,  designated,  and  separated  from 
the  stock  or  quantity  with  which  they  are  mixed  before  the 
property  can  pass."     He   considers  the   case  of  Pleasants  v. 
Pendleton,  6  Rand.  475,  as  decided  on  erroneous  principles. 
The  case  of  Hutchinson  v.  Hunter  presented  a  case  of  a  sub- 
contract or  sale  like  the  present,  and  it  was  urged  that  this 
dififered  the  ease  from  wdiat  it  might  otherwise  have  been,  as 
respects  the  original  vendor.     But  the  Court  held  that  this  did 
not  vary  the  case  in  the  matter  of  the  necessity  of  a  separation 
of  the  article  sold  from  the  greater  mass.     So  in  Golden  v. 
Ogden,  15  Penn.  St.  R.  (3  Harris)  528,  where  a  contract  w^as 
made  for  the  sale  of  2000  pieces  of  wall  paper,  the  purchaser 
giving  his  notes  therefor  to  the  vendor,  and  taking  away  with 


IN    PERSONALTY — SALES.  407 

liini  1000  pieces,  and  it  was  agreed  that  the  other  1000  pieces 
should  remain  until  called  for  hy  the  purchaser,  upon  a  ques- 
tion of  property  in  the  remaining  1000  pieces  between  the 
assignees  of  the  vendor  and  the  i»urchasor,  it  was  lield  that 
these  1000  pieces  not  having  been  selected  by  the  buyer,  or 
seitarated  or  set  apart  for  him,  but  remaining  mingled  with 
other  pa[)er  of  same  descrij)tion,  did  not  become  the  property 
of  the  alleged  buyer,  as  against  an  assignment  for  the  benefit 
of  the  creditors  of  the  vendor.  The  jirineipleadvanceil  in  that 
case  seems  to  be  the  sound  one:  "That  the  property  cannot 
pass  until  there  be  a  specitic  identification  in  some  way  of  the 
particular  goods  which  the  I'arty  bargains  for.  The  law  knows 
no  sueh  thing  as  a  floating  right  of  jtroperty,  which  may  attach 
itself  either  to  one  [)arcel  or  the  otlier,  as  may  be  found  con- 
venient afterwards."  The  case  of  "Wahlo  v.  Belcher,  11  Iredell, 
609,  was  the  case  of  a  sale  of  corn  by  a  vendor,  having  in  ins 
store  3100  bushels  (^f  corn,  and  selling  2800  bushels  of  the 
same,  but  the  2800  bushels  were  never  separated  from  the  ClOO, 
and  the  whole  was,  after  the  sale,  destroyed  by  fire,  and  it  was 
held  that  the  jirojicrty  in  tbe  2800  bushels  did  not  jmss  to  the 
vendee,  though  it  would  have  been  otherwise  had  it  been  a  sale 
of  all  the  corn  in  the  crib.  The  ground  of  the  decision  was, 
that  there  had  been  no  separation,  that  it  could  not  be  ascer- 
tained which  corn  was  the  })roperty  of  the  vendee  until  it  was 
separated.  The  purchaser  could  not  bring  detinue,  because  he 
could  not  describe  the  particular  thing.  This  would  be  equally 
so  as  to  replevin.  The  case  of  Merrill  v.  Ilunnewell,  13  Pick. 
213,  bears  strongly  upon  the  question  before  us.  It  was  a  sale 
of  nine  arches  of  brick  in  a  kiln  containing  a  larger  number, 
but  not  separated  from  the  residue  or  specifically  designated. 
After  the  vendor  had,  by  other  sales,  reduced  the  quantity  on 
hand  to  less  than  nine  arches,  upon  a  question  of  property  be- 
tween the  vendee  and  an  attaching  creditor  of  the  vendor,  it 
was  held  that  the  [lurchaser  took  no  i)ro})erty  in  the  bricks,  the 
sale  being  of  part  of  a  large  mass,  not  delivered  nor  specillcally 
designated. 

Blackburn,  in  his  Treastise  on  Sales,  p.  20,  }>resents  the  law 
on  this  subject  thus:  "Until  the  parties  are  agreed  as  to  the 
specific  identical  goods,  the  contract  can  be  no  more  than  a  con- 


408  ILLUSTRATIVE    CASES 

tract  to  supply  goods  answering  a  particular  clescri[)ti()n,  and 
since  the  vendor  would  fulfill  liis  part  of  the  contract  hy  fur- 
nishing any  parcel  of  goods  answering  that  dtscri[)ti(in,  it  is 
clear  there  can  be  no  intention  to  transfer  the  property  in  any 
particular  lot  of  goods  more  than  another,  until  it  is  ascertained 
which  are  the  very  goods  sold." 

Examining  the  facts  in  the  case  before  us,  and  applying  the 
jirinciples  of  the  cases  last  cited,  and  the  approved  elementary 
doctrine  as  to  wliat  is  necessary  to  constitute  a  sale  of  })roperty 
not  separated  from  the  mass  of  like  kind,  or  designated  by  any 
descriptive  marks,  the  Court  are  clearly  of  opinion  that  the 
property  in  tlje  specified  150  barrels  of  pork  taken  by  the  plain- 
tiff, under  his  writ  of  replevin,  had  never  passed  from  the 
vendors,  and  therefore  this  action  cannot  be  maintained. 

In  the  argument  of  this  case  on  tlie  part  of  the  plaintiff,  the 
case  was  put  as  a  case  of  intermixture  of  goods,  and  it  was 
argued  that  such  intermixture  having  taken  place,  the  plaintiff 
might,  for  that  cause,  hold  the  property  as  his.  But,  in  fact, 
there  was  no  such  case  of  intermixture.  The  entire  property 
was  always  in  the  defendants. 

It  was  also  urged  that  the  defendants  were  estopped  to  deny 
that  the  150  barrels  of  pork  were  the  property  of  the  plaintiff, 
having  given  a  bill  of  sale  of  the  same,  and  under  the  circum- 
stances stated  in  the  statement  of  facts.  Had  this  been  an 
action  to  recover  damages  for  the  value  of  150  barrels  of  [lork, 
this  position  might  be  tenable,  nnd  the  defendants  estopped  to 
deny  the  property  of  the  [)laintiff  in  such  150  barrels.  This 
would  be  so  if  an  action  had  been  brought  against  the  defen- 
dants as  bailees  of  150  barrels  of  pork,  and  for  not  delivering 
the  same. 

But  the  distinction  betw^een  the  case  of  an  action  for  dam- 
ages for  not  delivering  150  barrels,  and  that  of  replevin,  com- 
manding the  officer  to  take  from  the  possession  of  the  defendants 
150  barrels,  and  deliver  the  same  to  plaintiff  as  his  property,  is 
an  obvious  one.  To  sustain  the  former  it  is  only  necessary  to 
show  a  right  to  150  barrels  generally,  and  not  any  specific  150 
barrels;  but  to  maintain  replevin,  the  plaintiff  must  be  the 
owner  of  some  specific  150  barrels.     If  bought,  they  nmst  be 


IN   PERSOXALTY — SALES.  409 

Specifically  set  apart,  or  designated  in  some  way  as  liis,  and 
not  intermingled  with  a  larger  mass  of  like  kind  owned  by  the 
vendor. 

Judgment  for  the  defendants. 

ITaase  v.  Nonneniachcr,  21  Minn.  MiiiiKapolis  Ilarvcstor  AVorks  v. 

48G  ;  Bomiallie,  20  Minn.  373  ; 

Knoblauch   r.   Kronschnabcl,  18  Taylor  v.  Mueller,  30  Minn.  3^3  ; 

Minn.  300;  Johnson   i:   Ilillstroin,  37  Minn. 

Ellis  V.  Andrews,  r,C,  X.  Y.  83  ;  1-2-2  ; 

Cop'.ay  Iron  Co.  v.  PopedaL,  IDS  Miteliell  v.  Gile,  12  X.  II.  .300. 
X.  Y.  232 ; 


EXCHANGE. 

Title  to  ])ropcrty  may  pass  from  one  party  to 
another  by  Exchange,  as  well  as  by  sale,  and  sucli 
title    may    pass   absolutely   or   upon    condition. 

Rollins  v.  Wibye. 

Supreme  Court  of  ^linnesota,  1889. 

40  Minn.  140. 

Dickinson,  J.  The  plaintiff  resides  in  the  State  of  Iowa ; 
the  defendant,  in  this  State.  The  former  owned  a  stallion 
called  "  Montana ;"  the  latter  owned  one  called  "  Solide."  At 
the  plaintifi"'s  place  of  residence  in  Iowa — the  defendant's  horse 
not  being  there — the  parties  entered  into  an  agreement  con- 
cerning an  exchange  of  the  animals.  The  precise  nature  of 
this  agreement  is  a  subject  of  controversy  in  this  action.  In 
the  complaint  it  is  alleged  that  the  defendant,  among  other 
things,  represented  his  stallion  as  being  sound  and  healthy  ; 
that,  relying  upon  such  representations,  the  plaintiif  entered 
into  a  contract  of  exchange,  whereby  defendant  was  to  take 
the  plaintifl's  horse — Montana — with  him  to  Minnesota,  and 
return  to  the  plaintifi"'s  residence  in  Iowa  with  his  (defendant's) 
horse — Solide — and  deliver  him  to  the  plaintilF  there,  and  if, 
upon  such  delivery,  the  defendant's  representations  should  be 
found  true,  then  the  trade  was  to  be  complete,  and  until  then 


410  ILLUSTRATIVE    CASES 

the  title  should  not  pass.  Tlie  falsit}-  of  these  representations 
is  alleged  ;  it  being  averred  that  the  defendant's  horse  was  sick, 
having  a  contagious  disease,  of  which  he  died  while  being 
transported  to  Iowa.  The  defendant,  in  his  answer,  denies  that 
he  made  any  representations  whatever;  denies  that  any  repre- 
sentations made  by  him  were  false,  that  he  agreed  to  deliver 
his  horse  in  Iowa,  and  that  it  was  agreed  that  title  should  not 
pass  until  such  delivery,  or  until  any  re[>re6entation  sliould  be 
found  true;  and  avers  that  the  exchange  was  immediate  and 
complete.  It  is  admitted  in  the  answer  that  the  horse  was  sick 
at  the  time  the  contract  was  made,  and  that  he  died  while  on 
the  way  to  the  plaintifl*'s  residence  in  Iowa.  This  action  is  for 
the  recovery  of  the  stallion  Montana,  which  the  plaintift'  claims 
as  being  still  his  property.  It  appears  from  a  bill  of  exceptions 
that  both  parties  introduced  evidence  tending  to  sustain  the 
allegations  of  their  respective  pleadings.  The  Court  refused 
to  instruct  the  jury,  as  requested  by  the  defendant,  that  the 
only  question  in  the  case  was  whether  the  agreement  was  that 
the  defendant's  horse  was  to  be  delivered  to  the  plaintifl"  in 
Iowa,  and  that,  if  such  was  not  the  fact,  the  verdict  must  be 
for  the  defendant.  The  Court  construed  the  com})laint  as 
alleo-ing  this  further  condition  to  the  exchange  becoming  abso- 
lute, viz.:  That  the  horse  was  at  the  time  of  the  making  of 
tlie  agreement  sound  and  healthy,  as  represented  ;  and  that 
this  representation  should  be  found  to  be  true  when  the  horse 
should  be  delivered.  We  are  of  the  opinion  that  the  Court 
was  justified  in  thus  construing  the  complaint,  in  view,  not 
only  of  its  allegations,  but  of  the  fact  that  the  defendant  so 
treats  it  in  his  answer.  Therefore  the  refusal  to  charge  as  re- 
quested was  not  error.  Upon  this  construction  of  the  com- 
plaint, the  condition  of  the  horse  as  to  health  at  the  time  of 
the  agreement  was  of  course  material  ;  but,  inasmuch  as  the 
answer  admits  that  the  horse  was  sick  at  the  time  of  the  agree- 
ment, and  that  he  died  before  reaching  the  plaintiff's  residence, 
it  does  not  seem  to  us  to  have  been  necessary  for  the  plaintift' 
to  ofter  evidence  to  show  the  particular  nature  of  the  disease, 
and  that  it  was  contagious.  However,  the  aj^pellant's  argu- 
ment upon  this  point  is  not  based  upon  the  ground  that  the 
sickness  of  the  horse  was  admitted.     For  no  other  reason  was 


IN    PERSONALTY — SALES.  411 

that  evidence  objectionable.     It  was  not  prejudicial   error  to 
receive  such  proof,  altlioiii:;li  it  was  unnecessary. 

In  this  connection,  however,  iniiuaterial  evidence  was  re- 
ceived, which  we  are  not  prepared  to  say  was  not  prejudicial 
to  the  defendant.  ThU  evidence  was  that  several  per^^on.s, 
wiiosc  mures  bad,  as  the  evidence  tended  to  show,  contracted 
disease  from  the  horse,  had  complained  to  the  defendant  of 
this  prior  to  the  time  of  the  making  of  the  contract  in  ques- 
tion. The  i>ur[)ose  of  the  Coui-t,  as  we  umlerstand,  was  to  limit 
the  proof  of  such  disease  having  been  contracted  by  the  mares 
to  cases  in  wdiich  the  defendant  had  been  notified  of  such  facts, 
so  that  he  might  not  be  surprised.  If  it  was  jiroper  to  receive 
proof  that  the  horse  was  so  affected,  the  manner  in  which  the 
proof  was  made  was  comiietent  (Steph.  Dig.  Ev.,  c.  2,  art.  0), 
and  it  was  not  ne<;eRsary  to  limit  the  proof  of  facts  going  to 
establish  the  ex  stcnee  of  disease  to  cases  which  had  been  pre- 
viously Itrought  to  the  attention  of  the  defendant,  and  so  it 
was  immaterial  wliether  such  complaints  had  been  made  or  not. 
The  possible  prejudice  lies  in  the  tendency  of  such  evidence  to 
show  fraud  on  the  part  of  the  defendant  at  the  time  of  making 
the  contract,  although,  as  the  Court  properly  ruled,  the  (pies- 
tion  of  fraud  was  not  involved  in  tlie  case.  The  Court  in- 
strueted  the  jury  as  follows:  "  Xow,  in  case  you  find  this  trade 
was  an  absolute  one — that  there  were  no  conditions  whatever — 
then  you  may  leave  this  testimony  in  regard  to  this  contagious 
disease  out  of  the  ease;  but  it  is  proper  for  you  to  consider 
upon  this  question  whether  or  not  it  was  an  absolute  or  condi- 
tional trade  ;  and  it  is  important  for  you  to  inquire  whether 
this  lioi'se  did  have  this  contagious  disease  or  not,  and  whether 
Mr.  Wibye  knew  it.  If  he  did,  and  Mr.  Wibye  knew  it,  what 
bearing  has  it  upon  the  main  question  in  the  case?  The  force 
and  etfect  of  the  testimony  is  entirely  with  you,  and  not  with 
the  Court."  A  pro[ier  exception  having  been  taken,  errcu-  is 
assigned  in  respect  to  that  ]iart  of  this  instruction  to  the  effect 
that  it  was  proper  for  the  jury  to  consider  the  evidence  of  the 
horse  having  a  contagious  disease,  as  aftecting  the  question  as 
to  whether  the  agreement  for  an  exchange  was  absolute  or  con- 
ditional. This  instruction  was,  as  we  consider,  error.  This 
evidence  would  not  have    been    admissible  for   the  purpo,-e  of 


412       ILLUSTKATIVE  CASES  IN  PERSONALTY — SALES. 

enabling  the  jury  to  determine  whether  the  agreement  of  the 
parties  to  exchange  horses  was  absolute  or  conditional.  Tlie 
condition  of  the  horse  at  the  time  of  tlje  agreement  would  be 
a  matter  collateral  to  that  particular  issue,  and,  unless  known 
to  both  of  the  contracting  parties,  would  be  irrelevant.  It 
would  aftbrd  no  proper  ground  for  an  inference,  one  way  or  the 
other,  as  to  whether  the  contracting  parties  had  agreed  upon  an 
absolute  or  only  a  conditional  exchange.  See  Roles  v.  Mintzer, 
27  Minn.  31  (6  K  W.  Rep.  378).  It  may  be  that  if  the  defend- 
ant knew  that  the  horse  was  diseased,  that  w^ould  be  an  induce- 
ment to  him  to  dispose  of  him  upon  the  best  terms  possible ; 
but  he  could  not  alone  determine  the  conditions  or  terms  of  a 
contract  of  sale  or  exchange,  and  the  fact  in  question  could  add 
nothing  to  the  probtible  truthfulness  of  the  testimony  of  Avit- 
nesses  as  to  what  terms  were  actually  agreed  upon.  The  case 
is  not  within  the  rule  stated  in  Kumler  2\  Ferguson,  7  Minn. 
351  (442),  and  Schwerin  v.  De  Graft',  21  Minn.  354.  It  is  not 
apparent  that  the  error  was  harmless,  and  a  new  trial  must  be 
awarded. 

From  language  appearing  in  the  charge  of  the  Court  it  may 
be  suspected  that  the  nature  of  the  arguments  of  counsel  to  the 
jury  had  been  such  as  might  have  precluded  the  defendant  from 
now  claiming  this  instruction  to  have  been  erroneous ;  but,  if 
such  was  the  fact,  it  is  not  shown  by  the  settled  bill  of  excep- 
tions, and  we  cannot  assume  that  such  was  the  case. 

We  discover  no  other  error  in  the  case. 

Order  reversed. 

Vail  V.  Strong,  10  Yt.  457 ;  Sheldon  v.  Cox,  3  B.  &  C.  420,  10 

Edwards  i'.  Cottrell,  43  Iowa,  194 ;    Eng.  Com.  Law. 

Anonymous  Case,  3  Salk.  157  ; 

Stevenson  v.  State,  65  Ind,  409. 


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